State v. Lillo

SANDERLIN, Judge.

In this appeal, the state contends that the trial court erred in withholding adjudication of guilt from the defendant’s judgment. We agree and reverse.

The defendant was charged with two counts of bookmaking, in violation of section 849.25, Florida Statutes (1985). He pleaded nolo contendere to the charges, with the understanding that adjudication would be withheld. The state objected, arguing that section 849.25(2) required an adjudication of guilt. Nevertheless, the trial court accepted the defendant’s plea, placed him on community control, and withheld adjudication of guilt.

Section 849.25(2) provides in pertinent part:

Notwithstanding the provisions of s. 948.01, any person convicted under the provisions of this subsection shall not have adjudication of guilt suspended, deferred, or withheld.

It is clear that the term “convicted” as used in the statute also encompasses a plea of nolo contendere.

Accordingly, we reverse the defendant’s judgment, and remand for further proceedings where the defendant shall be given the opportunity to withdraw his plea.

RYDER, A.C.J., and SCHOONOVER, J., concur.