STATE V. PEARSON

State: Florida

Court: Florida Third District Court

Docket No: 09-2620

Case Date: 11/03/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed November 3, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-2620 Lower Tribunal No. 09-11864 ________________

The State of Florida,
Appellant, vs.

Leon Pearson,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel, Judge. Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant. Carlos J. Martinez, Public Defender, and Harvey Sepler, Assistant Public Defender, for appellee. Before RAMIREZ, C.J., and GERSTEN and ROTHENBERG, JJ.,

RAMIREZ, C.J. The State of Florida appeals the trial court's order withholding adjudication. The trial court erred when it imposed a withhold of adjudication for a second-

degree felony where the defendant, Leon Pearson, had a previous withhold of adjudication for a felony. Section 775.08435, Florida Statutes (2009), provides that "no adjudication of guilt shall be withheld for a second degree felony offense if the defendant has a prior withholding of adjudication for a felony that did not arise from the same transaction as the current felony offense." The record reflects that the State made it clear to the trial court that, on January 8, 2009, Pearson had a prior withhold of adjudication entered for possession of a controlled substance. The State showed this prior offense to defense counsel, and there was no dispute regarding the existence of this prior offense. We disagree with Pearson that the error was not preserved for appellate review. The State properly preserved the issue for appeal when it informed the trial court of Pearson's specific prior conviction for possession of a controlled substance and then objected to the trial court's withhold of adjudication. Moreover, the record reflects that the State subsequently renewed the objection and directed the trial court to the relevant portion of the statute pertaining to withholding of adjudication for second degree felonies. See State v. Johnson, 990 So. 2d 1115 (Fla. 3d DCA 2008). Accordingly, we reverse the trial court's order imposing Pearson's downward departure in the form of a second withhold of adjudication and remand

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so that the trial court can either adjudicate the defendant or allow the defendant to withdraw his plea. Reversed and remanded.

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