       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         STATE OF FLORIDA,
                             Appellant,

                                   v.

                            NELSON ERVIN,
                               Appellee.

                             No. 4D19-626

                           [March 18, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 18-
003737CF10A.

   Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellant.

   Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellee.

KUNTZ, J.

    The State appeals the circuit court’s order withholding adjudication
on Nelson Ervin’s no contest plea to a first degree felony. We agree the
court erred in withholding adjudication. But, at the time of sentencing,
the State did not object to the court withholding adjudication. So we
affirm.

                            i. Background

    Ervin pleaded no contest to armed burglary of a dwelling, a first
degree felony; two counts of dealing in stolen property, second degree
felonies; and two counts of false ownership information to a pawn broker,
third degree felonies.

    On the day of sentencing, Ervin’s Criminal Punishment Code
scoresheet listed the primary offense as armed burglary of a dwelling, a
first degree felony. The scoresheet listed another case under “additional
offenses” and listed one count of burglary of a dwelling, three counts of
dealing in stolen property, and two counts of false ownership information
to pawn an item. The scoresheet showed the lowest permissible prison
sentence was 78 months.

   At sentencing, Ervin’s counsel asked the court to withhold
adjudication, explaining that the victim did not want to “see this young
man convicted.” Ervin’s counsel indicated the State was “up in the air
about whether or not adjudication should be withheld.” Consistent with
that message, the prosecutor told the court: “Just as far as the withhold,
judge, can or can[’]t withhold on that so that’s the State’s position.”

   The court withheld adjudication on all five counts.

                               ii. Analysis

   On appeal, the State argues the court was barred from withholding
adjudication on one count because of Ervin’s plea to a first degree felony.
The State is correct.

   The controlling statute specifically states that “the court may not
withhold adjudication of guilt upon the defendant for: (a) Any capital, life,
or first degree felony offense.” § 775.08435(1)(a), Fla. Stat. (2019).
Based on the statute, it is reversible error for a court to withhold
adjudication on first degree felony convictions. See State v. Foster, 114
So. 3d 422, 422 (Fla. 5th DCA 2013).

   Had the State raised the objection, and had the court still withheld
adjudication, we would be compelled to reverse. But, at most, the State
was ambivalent and failed to contemporaneously object. See, e.g., Castor
v. State, 365 So. 2d 701, 703 (Fla. 1978); State v. Rivera, 249 So. 3d
1314, 1316 (Fla. 5th DCA 2018) (citing Jackson v. State, 983 So. 2d 562,
568 (Fla. 2008)).

   Based on the State’s failure to object, we can reverse only if the error
is fundamental. And we have previously rejected an argument that
improperly withholding adjudication is fundamental error. State v.
Calvert, 15 So. 3d 946, 949 (Fla. 4th DCA 2009) (citing State v.
Ackerman, 785 So. 2d 1229, 1231 (Fla. 4th DCA 2001)).

                             iii. Conclusion

   The State’s failure to contemporaneously object at sentencing, and its
near acquiescence to Ervin’s request that the judge withhold
adjudication, require us to affirm the court’s ruling.

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  Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

                         *        *       *

  Not final until disposition of timely filed motion for rehearing.




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