final until disposition of timely filed motion for rehearing.
of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Bernard I.
Bober, Judge; L.T. Case No. 11-15902 CF10A.
Antoine Robinson, Arcadia, pro se.
B. Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
defendant appeals from the circuit court's denial of his
Florida Rule of Criminal Procedure 3.800(a) motion to correct
an illegal sentence. The defendant specifically challenges
his sentence as a habitual felony offender (HFO). The
defendant argues that the circuit court erred in treating a
prior withhold of adjudication, for which the defendant did
not also receive the legally-required probation or community
control, as his HFO-qualifying prior conviction. We disagree
with the defendant and affirm.
sentence a defendant as an HFO, section 775.084(1)(a)2.b.,
Florida Statutes (2011), provides that the court must find,
among other things:
The felony for which the defendant is to be sentenced was
committed . . . [w]ithin 5 years of the date of
the conviction of the defendant's last prior felony or
other qualified offense, or within 5 years of the
defendant's release from a prison sentence, probation,
community control, control release, conditional release,
parole or court-ordered or lawfully imposed supervision or
other sentence that is imposed as a result of a prior
conviction for a felony or other qualified offense, whichever
§ 775.084(1)(a)2.b., Fla. Stat. (2011) (emphasis added).
the definition of a "conviction," section
775.084(2) provides that "the placing of a person on
probation or community control without an adjudication of
guilt shall be treated as a prior conviction." §
775.084(2), Fla. Stat. (2011).
instant case, the circuit court treated as the
defendant's HFO-qualifying prior conviction a Miami-Dade
felony (from four years earlier) for which the Miami-Dade
judge entered a withhold of adjudication, but suspended entry
of a sentence without imposing probation or community
control. Such a sentence was illegal because a withhold of
adjudication on a felony requires the imposition of probation
or community control. See § 948.01(2), Fla.
Stat. (2011) (if a court withholds adjudication of guilt,
"the court shall stay and withhold the imposition of
sentence upon the defendant and shall place a felony
defendant upon probation.") (emphasis added); Fla.
R. Crim. P. 3.670 ("[W]here allowed by law, the judge
may withhold an adjudication of guilt if the judge places
the defendant on probation.") (emphasis added);
State v. Tribble, 984 So.2d 639, 640 (Fla. 4th DCA
2008) ("Only if the trial court places the defendant
on probation may the court withhold such adjudication of
guilt. . . . Withholding or suspending adjudication or
sentence in a felony case can only be done when the
defendant is put on probation.") (emphasis added;
defendant did not challenge the HFO sentence on direct
appeal. We affirmed his conviction and sentence, and the
Florida Supreme Court denied review. Robinson v.
State, 180 So.3d 1056 (Fla. 4th DCA 2015), rev.
denied, No. SC15-2244, 2016 WL 698528 (Fla. Feb. 22,
defendant later filed in the circuit court his rule 3.800(a)
motion, followed by a supplement to the motion. The defendant
argued that the circuit court erred in treating his
Miami-Dade felony as his HFO-qualifying prior conviction
under section 775.084(1)(a)2.b. for two reasons: (1) the
Miami-Dade felony was not a "conviction" under
section 775.084(2) because although he received a withhold of
adjudication for that offense, he was not placed on
probation; and (2) because he received a withhold of
adjudication but was not placed on probation for the
Miami-Dade felony, the Miami-Dade sentence was illegal and
could not be relied upon as his HFO-qualifying prior
"conviction" under section 775.084(1)(a)2.b.
state filed a response arguing simply that "a withhold
of adjudication can be used as a qualifying offense"