County Criminal Court: CRIMINAL LAW – Sentencing – Error for the trial court to withhold adjudication without also imposing probation. Sentence reversed. State v. Lindner, No. CRC 05-5 APANO, (Fla. 6th Cir.App.Ct. July 12, 2005).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

STATE OF FLORIDA

 

            Appellant,

Appeal No. CRC 05-5 APANO

UCN522005AP000005XXXXCR

v.

 

LAWRENCE A. LINDNER

 

            Appellee.

______________________________/

 

Opinion filed ________________.

 

Appeal from a sentence entered

by the Pinellas County Court

County Judge Thomas Freeman

 

Gregory Groger, Esq.

Assistant State Attorney

ORDER AND OPINION

 

            (J. Sullivan)      

 

            THIS MATTER is before the Court on the State’s appeal from a sentence entered by the Pinellas County Court. After considering the brief and the record (the appellee failed to file an answer brief), this Court reverses the sentence.

            The defendant pleaded no contest to charges of obstructing a law enforcement officer. The trial court withheld adjudication. Over the objection of the State, the trial court refused to place the defendant on probation. This was error.

            §948.01(2), Fla.Stat. (2004) provides that:

                        [i]f it appears to the court upon hearing of the matter that

                        the defendant is not likely again to engage in a criminal

                        course of conduct and that the ends of justice and

                        welfare of society do not require that the defendant

                        presently suffer the penalty imposed by law, the court, in

                        its discretion, may either adjudge the defendant to be

                        guilty or stay and withhold the adjudication of guilt; and,

                        in either case, it shall stay and withhold the imposition of

                        sentence upon such defendant and shall place the defendant

                        upon probation.

 

In addition, Fla.R.Crim.P. 3.670 provides that:

 

[i]f the defendant is found guilty, a judgment of guilty,

and if the defendant has been acquitted, a judgment of

not guilty shall be rendered in open court and in writing,

signed by the judge, filed, and recorded. However, the

judge may withhold adjudication of guilt if the judge

places the defendant on probation.

 

Case law has interpreted this statute and rule as requiring probation whenever a trial court

 

withholds adjudication. See State v. Sylvio, 846 So.2d 1271 (Fla. 4th DCA 2003).

 

            IT IS THEREFORE ORDERED that the sentence is reversed, and this case is remanded to the trial court for resentencing in accordance with this Order and Opinion.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of June, 2005.

 

                                                                                    ___________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

                                                                                    __________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                Irene S. Sullivan

                                                                                                Circuit Judge

cc:   State Attorney

        Lawrence Lindner

        Judge Freeman