Opinion
Case No. 5D18-3925
10-04-2019
WILLIE LARKINS, JR., Appellant, v. STATE OF FLORIDA, Appellee.
James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Brevard County, Kelly J. McKibben, Judge. James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM.
AFFIRMED. WALLIS and GROSSHANS, JJ., concur.
LAMBERT, J., concurs specially with opinion. LAMBERT, J., concurring specially.
Willie Larkins, Jr., pleaded no contest to charges of possession of cocaine, possession of marijuana in an amount less than twenty grams, and possession of drug paraphernalia, reserving the right to appeal the trial court's denial of his dispositive motion to suppress. Pursuant to the parties' plea agreement, Larkins was to be placed on six months of probation for the possession of cocaine count and to receive a two-day "credit for time served" jail sentence on the other counts, with adjudication of guilt being withheld on all counts. Because Larkins has not shown reversible error regarding the denial of his motion, I agree with the affirmance.
I write briefly to address the jail sentences. As I had previously explained in my concurring opinion in Wykretowicz v. State, 264 So. 3d 389 (Fla. 5th DCA 2019), the two-day "time served" jail sentence for the possession of marijuana and possession of paraphernalia counts is improper because an adjudication of guilt cannot be withheld when only a jail sentence is imposed. See also State v. Scarantino, 543 So. 2d 399, 399 (Fla. 4th DCA 1989) ("Under Florida Rule of Criminal Procedure 3.670 and Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978), adjudication cannot be withheld if a jail term is imposed.").
Here, the trial court should have explained to the parties that it could only withhold an adjudication of guilt on these two misdemeanor counts if Larkins agreed, as part of the plea, to a short term of probation, with the two days' incarceration as a special condition of probation. Otherwise, the court would be required to adjudicate him guilty on these counts. However, because the State has not challenged these sentences in this direct appeal, this issue has not been preserved for our present review.