DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
GABRIEL CHARLTON,
Appellee.
No. 4D20-276
[December 16, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia-Wood, Judge; L.T. Case No.
19000074CF10A.
Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley,
Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Timothy Wang, Assistant
Public Defender, West Palm Beach, for appellee.
ARTAU, J.
The State appeals from a final order withholding an adjudication of guilt
on a third-degree felony charge. It argues that the trial court
impermissibly withheld adjudication on the third-degree felony in violation
of the plain text of section 775.08435(1)(d), Florida Statutes (2019). We
agree and reverse.
Background
Defendant entered an open plea of “no contest” to the third-degree
felony charge of unarmed burglary of an unoccupied conveyance. During
sentencing, the court and the parties engaged in a colloquy regarding
exactly how many times Defendant had received withholds of adjudication
of guilt on prior felonies. The circuit court took the position that multiple
withholds in a prior case counted as only one withhold for purposes of
eligibility to receive a withhold in a subsequent case under section
775.08435(1)(d).
As the primary justification for an additional withhold of adjudication,
the circuit court referenced the Defendant’s desire to turn his life around
and pursue substance abuse treatment.
Analysis
Section 775.08435(1)(d) prohibits a court from withholding
adjudication of guilt if the defendant has a prior withholding of
adjudication for a qualifying felony offense that did not arise from the same
transaction as the current felony offense unless the state attorney requests
in writing that adjudication be withheld (“exception (1)(d)1.”), or the court
makes written findings that the withholding of adjudication is reasonably
justified based on certain mitigating circumstances or factors outlined by
the statute (“exception (1)(d)2.”). However, the final proviso contains a
catch-all maximum cap on the permitted number of withheld
adjudications arising from any subsequent transactions or incidents. It
provides: “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.” This
proviso “restricts the court’s discretion to withhold adjudication” as the
Second District explained in Braine v. State,
255 So. 3d 470, 472 (Fla. 2d
DCA 2018) (concluding that the defendant is ineligible under the plain
meaning of the statute because he had already received withholds of
adjudication for two prior third-degree felonies in a previous transaction
unrelated to the current offense) (citing State v. Cook,
14 So. 3d 1155 (Fla.
4th DCA 2009), and State v. Jean,
114 So. 3d 451 (Fla. 4th DCA 2013)).
The statute does not countenance a maximum number of withholds
within one individual transaction, but provides a maximum number of
withholds of adjudication when contrasted within two separate
transactions. The statutory text permits the court to withhold
adjudication in a subsequent transaction given satisfaction of either of
those two exceptions—(1)(d)1. or (1)(d)2.—so long as the maximum
number of withholds has not been exhausted. In other words, the final
proviso makes two withholds the ceiling to cabin these exceptions and
exclude subsequent withholds. This interpretation of the statutory text
has been explained multiple times by our court. See, e.g., State v. Cook,
14 So. 3d at 1156 (“[O]nce a defendant has been graced with a withhold of
adjudication, section 775.08435(1)(c) prohibits a second withhold of
adjudication if the felony offense did not ‘arise from the same transaction’
and neither exception applies.”).
2
In Jean, we held that a defendant who had received two prior withholds
from a previous transaction was not permitted to receive a third because
of the statute’s prohibiting language.
114 So. 3d at 452. We similarly
interpreted the statute in State v. Ester,
264 So. 3d 979, 979 (Fla. 4th DCA
2019), because the defendant there had two withholds in a prior case
unrelated to the third-degree offenses for which adjudications were
withheld. And in State v. Ly,
208 So. 3d 330, 330 (Fla. 5th DCA 2017),
our sister court also interpreted the statute as proscribing the withholding
of adjudication where the defendant had two or more prior withholds for
felonies that did not arise from the same transaction.
Here, Defendant received four withholds as a part of a previous
transaction. Because the amount of prior withholds was at least two, and
those withholds occurred in a previous transaction, the statutory
maximum has been exceeded, making Defendant ineligible for any further
withholding of adjudication even if exceptions (1)(d)1. or (1)(d)2. could
apply.
Defendant interprets the “same transaction” language within the
concluding proviso such that all withholds in a previous case would
constitute a single withhold. However, the proviso speaks to the
relationship between the current felony offense and the previous felony
offense, not between the number of felony offenses arising out of the same
transaction or incident.
Conclusion
Thus, the relationship between the two transactions is binary, such
that, within the first transaction, the number of offenses is immaterial to
trigger section 775.08435 (1)(d) and its concluding proviso, but a second
transaction triggers (1)(d) of this section—and consequently, both the
discretion afforded by exceptions (1)(d)1. and (1)(d)2.—and the limiting
language of the concluding proviso. In other words, the four withholds
here as a part of the same transaction would be permitted if a part of the
first and only transaction, but the four withholds in the first transaction
prohibit any further withholding of adjudication in the second transaction.
In sum, the statute prescribes a limit of two withholds in the aggregate
unless those withholds are a part of the first and only transaction. Only
if the maximum number of withholds—two or more—has not been
exhausted, may the circuit court withhold adjudication in a subsequent
qualifying felony transaction or incident, given satisfaction of either of
those two exceptions.
3
Though we might loathe a formulation which limits our ability to judge
and reward the desire for rehabilitation in those who have regrettably
committed crimes, our lodestar is the text enacted by the Florida
Legislature, and our true task is to interpret such text, not to find it
wanting, but to make it clear.
Reversed and remanded.
LEVINE, C.J., concurs.
WARNER, J., concurs specially with opinion.
WARNER, J., concurring specially.
As the majority notes, State v. Ester,
264 So. 3d 979, 979 (Fla. 4th DCA
2019), State v. Jean,
114 So. 3d 451, 452 (Fla. 4th DCA 2013), State v.
Cook,
14 So. 3d 1155, 1156 (Fla. 4th DCA 2009), and Braine v. State,
255
So. 3d 470, 472–73 (Fla. 2d DCA 2018), all hold that where the defendant
has two prior withholds from a crime or crimes which do not arise from
the same transaction as the current felony, section 775.08435(1)(c),
Florida Statutes (2018), prevents the court from withholding adjudication
again. This is known as the same transaction exception. “The ‘same
transaction’ exception is limited to third-degree felony charges that arise
from the same transaction as the current offense.” Braine, 255 So. 3d at
473. There is no “same transaction” exception applied to the prior
offenses. Thus, the fact that the withholds are all from counts in the same
prior case does not mean that together they count only as one withhold,
as the trial court determined. They each amount to a withhold of
adjudication for purposes of the statute.
I would point out that in his brief, defendant does not challenge the
prior case law or argue that the trial court’s interpretation was correct.
Instead, he argues that the prosecutor waived his objection to the withhold
of adjudication during his argument. This appears to be a strained
interpretation of what the prosecutor said at the hearing. Moreover, in its
oral ruling, the trial court acknowledged the State’s interpretation of the
withhold exception but disagreed with it. On this record, no waiver
occurred.
* * *
Not final until disposition of timely filed motion for rehearing.
4
