FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Okaloosa County. William F.
Thomas, Public Defender, Lori A. Willner, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General; Daniel R. Krumbholz and Thomas H.
Duffy, Assistant Attorneys General, Tallahassee, for
issue presented is whether the trial court erred when, during
a violation of probation hearing, it held as a matter of law
that by its imposing a suspended sentence in conjunction with
modifying Appellant's probationary period, it lacked the
discretion to also withhold adjudication of guilt. For the
following reasons, we disagree and reverse.
August 14, 2015, Billy Joe Fowler, Jr.
("Appellant"), entered a plea to child neglect
without causing great bodily harm and was placed on probation
for three years. By corrected order entered on September 18,
2015, the trial court directed that adjudication be withheld.
January 2016, Appellant was charged with violating his
probation. The trial court again ordered that adjudication be
withheld when it modified Appellant's probation as a
consequence of the violation.
March 2016, Appellant violated his probation yet again. At
the violation of probation hearing, he entered into a
negotiated plea agreement whereby his probation was extended
an additional thirty months and included the following
conditions: electronic monitoring for six months, mandatory
attendance at weekly Alcoholics Anonymous meetings, anger
management classes, and "24 months DOC
susp[ended]." At the hearing, Appellant asked the trial
court for a third time to withhold adjudication of guilt. The
judge ruled it could not impose a suspended sentence without
adjudicating Appellant guilty, explaining: "I've
sentenced him to prison and just suspend[ed] it. So I
can't do that. It's not lawful."
pressed his case for a withhold of adjudication at the
subsequent plea colloquy hearing, where his counsel pointed
out that the court was not imposing a sentence, but
rather, was placing Appellant on probation and
suspending the sentence. Counsel asserted,
"That is completely different than imposing a
sentence." The trial court announced it had made its
ruling and had "made it clear" that it "must
adjudicate [Appellant] if the Court is to impose a suspended
sentence." It determined that it "lack[ed]
discretion to continue to withhold" while imposing a
appeal, Appellant challenges the notion that a suspended
sentence is the equivalent of an actual prison sentence for
purposes of adjudication of guilt. As Appellant rightly
acknowledges, there are no cases directly on point, but
analogous case law and relevant statutory directives guide us
to conclude that the trial court did have the discretion to
withhold adjudication even while imposing a suspended
sentence under the present circumstances.
begin our analysis with the general proposition that a
probationary period "is not a 'sentence.'"
State v. Summers, 642 So.2d 742, 744 (Fla. 1994)
(citing Villery v. Fla. Parole & Prob.
Comm'n, 396 So.2d 1107)); see also Landeverde v.
State, 769 So.2d 457, 462 (Fla. 4th DCA 2000).
Furthermore, under the terms of section 948.01(2), Florida
Statutes (2014), the trial court, "in its discretion,
may either adjudge the defendant to be guilty or stay and
withhold the adjudication of guilt. In either case, the court
shall stay and withhold the imposition of sentence upon the
defendant and shall place a felony defendant upon
probation." The trial court also has the option provided
in Section 948.012, Florida Statutes (2014), to impose a
split sentence of probation or community control and
imprisonment. As authorized by the legislature in section
(2) The court may also impose a split sentence whereby the
defendant is sentenced to a term of probation which may be
followed by a period of incarceration . . . as follows:
(a) If the offender meets the terms and conditions of
probation or community control, any term of incarceration may
be modified by court order to ...