State v. Rowell

669 So. 2d 1089 (1996)

STATE of Florida, Appellant,
v.
Robert Glenn ROWELL, Appellee.

No. 95-02204.

District Court of Appeal of Florida, Second District.

March 13, 1996.

Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Michael J.P. Baker, Assistant Public Defender, Bartow, for Appellee.

PER CURIAM.

The State of Florida appeals the trial court's decision to withhold adjudication of guilt on Robert Glenn Rowell's offense of driving under the influence, claiming that it is an illegal sentence. We agree and reverse.

Rowell pleaded guilty to driving under the influence and driving while his license was suspended.^[1] The trial court sentenced Rowell to five years' drug offender probation and withheld an adjudication of guilt as to the driving under the influence offense.

Section 316.656(1), Florida Statutes (1993), provides: "Notwithstanding the provisions of s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s. 316.193 [driving under the influence]...." This requirement is mandatory, and a court cannot circumvent it. State v. Griffith, 540 So. 2d 916 (Fla. 2d DCA 1989).

Rowell argues that the state failed to preserve this issue because it failed to object in the trial court. This error, however, appears to be in the nature of an illegal sentence. An objection in the trial court is not necessary to preserve for appellate review an illegal sentence. Randolph v. State, 626 So. 2d 1006 (Fla. 2d DCA 1993).

We reverse the sentence and remand with directions for the trial court to adjudicate Rowell guilty.

CAMPBELL, A.C.J., and PARKER and PATTERSON, JJ., concur.

NOTES

[1] Our review of the record shows that this was an open plea. If there had been a plea agreement that the judge would withhold adjudication of guilt, then Rowell would have to be given an opportunity to withdraw the plea. See State v. Scott, 611 So. 2d 596 (Fla. 2d DCA 1993).