Justice v. State

• Decision Date: 16 December 2020
• Docket Number: Case No. 2D19-4874
• Citation: 313 So.3d 743
• Parties: Christopher JUSTICE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

313 So.3d 743

Christopher JUSTICE, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-4874

District Court of Appeal of Florida, Second District.

Opinion filed December 16, 2020.

Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Chief Judge.

Christopher Justice timely appeals his judgment and sentence for possession of a controlled substance. We agree with Mr. Justice that the trial court adjudicated him for the conviction based on the misapprehension that it was statutorily precluded from withholding adjudication. We accordingly reverse and remand for the trial court to determine, in the first instance, whether to withhold adjudication.

Mr. Justice was charged with battery (a first-degree misdemeanor) and possession of a controlled substance (a third-degree felony). At the hearing below, Mr. Justice's counsel announced that he would change his plea from not guilty to no contest, based on an agreement with the State. Under that agreement, the State would enter a nolle prosequi as to the battery charge, adjudication would be withheld as to the possession charge, and Mr. Justice would be sentenced to eighteen months of drug offender probation. The State confirmed the agreement on the record.

As Mr. Justice was being sworn in to give his plea, the court stated that it was statutorily prohibited from withholding adjudication due to the fact Mr. Justice had previously been either charged with, or convicted of, two other felonies. Mr. Justice's counsel responded that she believed the court had the discretion to withhold adjudication because the statutory prohibition the court had referred to in fact addressed defendants with prior withholds, not charges or convictions. Ultimately, counsel acquiesced in the trial court's ruling.

The court then struck the word "withhold" from the plea form, explaining that it was doing so "because of the law that does not allow me to withhold adjudication based on your prior criminal history." The court confirmed that "other than that, all the terms can remain the same." The court then accepted the plea as revised. The court adjudicated Mr. Justice, again explaining that it was prohibited from withholding, and sentenced him to eighteen months of drug offender probation.

Section 775.08435, Florida Statutes (2019), limits the trial court's discretion to withhold adjudication in certain felony cases under specified circumstances. As relevant here, it provides:

(1) Notwithstanding the provisions of s. 948.01, the court may not withhold adjudication of guilt upon the defendant for:

....

(d) A third degree felony offense if the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense unless:

1. The state attorney requests in writing that adjudication be withheld;

...