County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed. State v. Empey, No. CRC 05-8 APANO, (Fla. 6th Cir.App.Ct. August 19, 2005).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-8 APANO

UCN522005AP000008XXXXCR

 

 

MATTHEW G. EMPEY

 

            Appellee.

_________________________________/

 

 

Opinion filed ________________.

 

Appeal from a sentence

entered by the Pinellas County Court

Thomas Freeman, County Court Judge

 

Gregory Goger, Esq.

Assistant State Attorney

 

Richard Watts, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal from a sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court reverses the sentence.

            The defendant pleaded guilty to a criminal mischief charge. The trial court withheld adjudication. Over the objection of the State, the trial court refused to place the defendant on probation. The State has appealed that sentence, claiming that it is unlawful.

Subsequent to the sentence being imposed, the other appellate panel of this Court entered its Opinion in State v. Lindner, No. CRC 05-5 APANO, (Fla. 6th Cir. App. Ct. July 8, 2005). In Lindner the Court explained that if a defendant is given a withhold of adjudication, the law requires that the defendant also be placed on probation. This panel agrees with the Lindner decision. Therefore, the sentence imposed by the trial court was in error.

            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 August, 2005.

 

 

                                                                                    ____________________________

                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                R. Timothy Peters

                                                                                                Circuit Judge

 

 

                       

                                                                                    ___________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

 

cc:   State Attorney

 

        Judge Freeman

 

       Matthew Empey