STATE v. ESTER (2019)

The State appeals an order withholding adjudication of Tammara Ester's guilt. Prior to this, Ester had adjudication withheld for two unrelated felony charges. For the reasons stated below, we reverse.

Ester was charged by information with grand theft of property valued at $ 300 or more but less than $ 5,000, a third-degree felony. She entered an open, no-contest plea to the charge. During sentencing, the State objected to withholding adjudication of Ester's guilt because she had two previous felony withholds of adjudication, neither of which arose from the grand theft charge before the trial court. Ultimately, the trial court sentenced Ester to six months of community control followed by thirty-six months of probation and withheld adjudication of guilt, over the State's objection. This appeal followed.

Section 775.08435(1)(d), Florida Statutes (2018), states: “Notwithstanding any provision of this section, no adjudication of guilt shall be withheld for a third degree felony offense if the defendant has two or more prior withholdings of adjudication for a felony that did not arise from the same transaction as the current felony offense.” (emphasis added).

Under the language of section 775.08435(1)(d), the trial judge in this case was prohibited from withholding adjudication. See State v. Jean, 114 So.3d 451, 452 (Fla. 4th DCA 2013). Accordingly, we reverse the sentence and remand for the trial court to re-sentence the defendant in accordance with section 775.08435. See id.

Reversed and remanded.

Klingensmith, J.

Conner and Kuntz, JJ., concur.