State v. Green , 1991 Fla. App. LEXIS 6817 ( 1991 )

PER CURIAM.

Appellee pled guilty to purchasing marijuana after spending eight days in jail. The trial court withheld adjudication and sentenced appellee to time already served in prison. We reverse based on State v. Seward, 543 So.2d 398 (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 can be withheld if the defendant is put on probation, but not if the defendant is incarcerated. See State v. Scarantino, 543 So.2d 399 (Fla. 4th DCA 1989). We remand to the trial court to reconsider whether to adjudicate appellant guilty or to withhold adjudication and place appellant on probation with a special condition of jail time already served.

HERSEY and WARNER, JJ„ concur. ANSTEAD, J., dissents with opinion.