                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

BILLY JOE FOWLER,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-3223

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed September 13, 2017.

An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Daniel R. Krumbholz and Thomas H. Duffy,
Assistant Attorneys General, Tallahassee, for Appellee.




JAY, J.

      The 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.

      On 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.

      In 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.

      In 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.”




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      Appellant 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 suspended

sentence.

      On 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.

      We 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

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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 948.012:

             (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 eliminate the term of incarceration.

See also State v. Powell, 703 So. 2d 444 (Fla. 1997) (holding that “a trial court may

impose a true split sentence in which the entire period of incarceration is

suspended”).

      We read the language of the foregoing statutes as granting the trial court broad

discretion in fashioning a term of probation when “the ends of justice and the welfare

of society do not require that the defendant presently suffer the penalty imposed by

law.” § 948.01(2), Fla. Stat. (2014). Section 948.012(2)(a) authorizes the trial court

to modify any term of incarceration “to eliminate” it altogether should “the offender

meet[] the terms and conditions of probation . . . .” Logically, if the serving of a

suspended sentence hinges on whether or not the defendant first successfully serves

his or her term of probation, it is merely inchoate. That is to say, under those


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circumstances, no sentence has yet to be imposed. Of course, under section

948.012(2)(a), the trial court still retains the discretion to impose sentence. But the

statutory authority makes clear that only upon imposition of sentence or upon the

revocation of the defendant’s probation does the trial court lose its discretion to

withhold adjudication of guilt. See § 948.06(2)(b) & (e), Fla. Stat. (2014); State v.

Countryman, 132 So. 3d 922 (Fla. 1st DCA 2014); State v. Curilly, 126 So. 3d 1244

(Fla. 1st DCA 2013); Tucker v. State, 78 So. 3d 36 (Fla. 3d DCA 2012). In

Appellant’s case, the trial court did not revoke his probation.

      We hold, therefore, that the trial court erred in believing it had no choice but

to adjudicate Appellant guilty because it had imposed a conditional suspended

sentence. Certainly, the trial court had the discretion to adjudicate Appellant guilty,

as section 948.01(2) permits, but it was not required to do so under the particular

circumstances of this case. Accordingly, we reverse and remand for further

proceedings consistent with this opinion. On remand, the trial court may reconsider

the issue of adjudication of guilt, but its choice to do so is governed by its discretion

and is not mandated.

      REVERSED and REMANDED.

WETHERELL and BILBREY, JJ., CONCUR.




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