         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

STATE OF FLORIDA,

              Appellant,

 v.                                                       Case No. 5D17-4016

BRYANT SANTANA RIVERA,

              Appellee.

________________________________/

Opinion filed July 6, 2018

Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and     Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and
David M. Dixon, Assistant Public Defender,
Daytona Beach, for Appellee.

COHEN, C.J.

       Bryant Rivera entered an open plea to a charge of possession of alprazolam, a

third-degree felony. § 893.13(6)(a), Fla. Stat. (2017). The trial court withheld adjudication

of guilt and sentenced Rivera to one day in the county jail with credit for time served. The

State appeals Rivera’s sentence, arguing that the court erred by withholding adjudication

of guilt pursuant to section 775.08435, Florida Statutes (2017), or alternatively, by
withholding adjudication of guilt without placing Rivera on a term of probation under

section 921.187, Florida Statutes (2017). “The legality of a sentence is a question of law,

and thus, subject to de novo review.” Montgomery v. State, 230 So. 3d 1256, 1258 (Fla.

5th DCA 2017) (citing Pinkard v. State, 185 So. 3d 1289, 1289‒90 (Fla. 5th DCA 2016)).

       At sentencing, the State represented that Rivera had two prior felony withholdings

of adjudication unrelated to the instant charge. On appeal, the State alternatively argues

that even if Rivera had only one prior felony withholding, as suggested by the court at

sentencing, the court erred in failing to make the findings mandated by section

775.08435(1)(d)2.

       Section 775.08435(1), Florida Statutes, limits the power of the trial court to

withhold adjudication. In pertinent part, subsection (d) prohibits withholding adjudication

of guilt on third-degree felonies 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.

§ 775.08435(1)(d), Fla. Stat. (2017). An exception exists if the state attorney requests in

writing that adjudication be withheld or the court makes written findings that withholding

adjudication is justified under the circumstances in accordance with the factors set out in

section 921.0026, Florida Statutes. Id. § 775.08435(1)(d)1.‒2. However, the court cannot

withhold adjudication if the defendant has two or more prior withholdings of adjudication

on felonies that did not arise from the same transaction as the current offense. Id.

§ 775.08435(1)(d).

       The State also argues that the court erred in withholding adjudication without

placing Rivera on a term of probation. Section 921.187(1)(c), Florida Statutes, provides

that the court may “[p]lace the offender on probation with or without an adjudication of




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guilt” if the court does not impose a prison sentence. Section 948.01(2), Florida Statutes,

further provides that “the court . . . 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.” Finally, Florida Rule of Criminal Procedure 3.670 provides that “where allowed

by law, the judge may withhold an adjudication of guilt if the judge places the defendant

on probation.” See also State v. Messina, 13 So. 3d 153, 154 (Fla. 4th DCA 2009) (finding

withholding of adjudication without imposition of probation to be illegal); State v. Penn,

881 So. 2d 67, 68‒69 (Fla. 5th DCA 2004) (noting that trial court erred by withholding

adjudication without imposing probation).

       The State’s arguments are well founded. However, the State failed to preserve

these issues for appeal by contemporaneous objection. See, e.g., Jackson v. State, 983

So. 2d 562, 568 (Fla. 2008) (“To preserve error for appellate review, the general rule is

that a contemporaneous, specific objection must occur during trial at the time of the

alleged error.” (quoting Gore v. State, 964 So. 2d 1257, 1265 (Fla. 2006))). Because any

error here was not fundamental, see, e.g., State v. Ackerman, 785 So. 2d 1229 (Fla. 4th

DCA 2001), we are compelled to affirm.

       AFFIRMED.

ORFINGER and WALLIS, JJ., concur.




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