       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          ANTOINE ROBINSON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D19-652

                              [June 26, 2019]

   Appeal 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.

  Ashley B. Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, C.J.

   The 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.

   To 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 is later.

§ 775.084(1)(a)2.b., Fla. Stat. (2011) (emphasis added).

   Regarding 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).

   In the 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; citations
omitted).

   The 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, 2016).

    The 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.


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   The state filed a response arguing simply that “a withhold of
adjudication can be used as a qualifying offense” under section
775.084(1)(a)2.b.

   The circuit court denied the defendant’s rule 3.800 motion, reasoning:
“A withhold of adjudication can be used as a qualifying offense [under
section 775.084(1)(a)2.b.].   Therefore, [the Miami-Dade felony] was
properly used as a qualifying offense [under section 775.084(1)(a)2.b.] to
find Defendant to be a habitual felony offender.”

    This appeal followed. Our review is de novo. See Pierre v. State, 259
So. 3d 859, 861 (Fla. 4th DCA 2018) (“A motion to correct a sentencing
error involves a pure issue of law, for which the standard of review is de
novo.”); Eustache v. State, 248 So. 3d 1097, 1100 (Fla. 2018) (“Questions
of statutory interpretation are reviewed de novo.”).

   We hold that a withhold of adjudication can be used as an HFO-
qualifying prior “conviction” under section 775.084(1)(a)2.b., even when
the withhold of adjudication was entered without imposing probation or
community control as required by section 948.01(2) and rule 3.670.

   We presume that the Legislature, in drafting section 775.084(2), did not
contemplate a court entering a withhold of adjudication without imposing
probation or community control, because such inaction would be illegal
under section 948.01(2) and rule 3.670. As such, we conclude that a
court’s illegal action of entering a withhold of adjudication without
imposing probation or community control may not frustrate the
Legislature’s intent that a withhold of adjudication be used as an HFO-
qualifying prior “conviction” under section 775.084(1)(a)2.b.

   Here, the defendant has already reaped the bargain of his illegal
sentence for the Miami-Dade felony by receiving the withhold of
adjudication without also receiving probation or community control as
required by section 948.01(2) and rule 3.670. We can find no cases which
would permit the defendant to further reap the bargain of that illegal
sentence by avoiding the Legislature’s intent that a withhold of
adjudication be used as an HFO-qualifying prior “conviction” under
section 775.084(1)(a)2.b.

    Nor should the defendant be entitled to such relief. To conclude
otherwise would be inconsistent with the purpose of the habitual offender
statute, which is to “permit harsher penalties to be imposed upon recidivist
offenders than could be imposed upon non-recidivists for the same
offense,” Hicks v. State, 595 So. 2d 976, 977 (Fla. 1st DCA 1992), and to

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“allow enhanced penalties for those defendants who meet objective
guidelines indicating recidivism,” Eutsey v. State, 383 So. 2d 219, 223 (Fla.
1980).

    Based on the foregoing, we conclude that the circuit court did not err
in finding that the defendant’s withhold of adjudication for the Miami-
Dade felony was an HFO-qualifying prior “conviction” under section
775.084(1)(a)2.b. On all other arguments which the defendant raises, we
affirm without further discussion.

   Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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