BILLY JOE FOWLER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-3223

_____________________________/

Opinion filed September 13, 2017.

An appeal from the Circuit Court for Okaloosa County.

William F. Stone, Judge.

Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, 

Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Daniel R. Krumbholz and Thomas H. Duffy, 

Assistant Attorneys General, Tallahassee, for Appellee.

JAY, J.

The issue presented is whether the trial court erred when, during a violation 

of probation hearing, it held as a matter of law that by its imposing a suspended 
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sentence in conjunction with modifying Appellant’s probationary period, it lacked 

the discretion to also withhold adjudication of guilt. For the following reasons, we 

disagree and reverse. 

On August 14, 2015, Billy Joe Fowler, Jr. (“Appellant”), entered a plea to 

child neglect without causing great bodily harm and was placed on probation for 

three years. By corrected order entered on September 18, 2015, the trial court 

directed that adjudication be withheld.

In January 2016, Appellant was charged with violating his probation. The trial 

court again ordered that adjudication be withheld when it modified Appellant’s 

probation as a consequence of the violation.

In March 2016, Appellant violated his probation yet again. At the violation of 

probation hearing, he entered into a negotiated plea agreement whereby his 

probation was extended an additional thirty months and included the following 

conditions: electronic monitoring for six months, mandatory attendance at weekly

Alcoholics Anonymous meetings, anger management classes, and “24 months DOC 

susp[ended].” At the hearing, Appellant asked the trial court for a third time to 

withhold adjudication of guilt. The judge ruled it could not impose a suspended 

sentence without adjudicating Appellant guilty, explaining: “I’ve sentenced him to 

prison and just suspend[ed] it. So I can’t do that. It’s not lawful.” 
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Appellant pressed his case for a withhold of adjudication at the subsequent

plea colloquy hearing, where his counsel pointed out that the court was not imposing

a sentence, but rather, was placing Appellant on probation and suspending the 

sentence. Counsel asserted, “That is completely different than imposing a sentence.” 

The trial court announced it had made its ruling and had “made it clear” that it “must 

adjudicate [Appellant] if the Court is to impose a suspended sentence.” It determined

that it “lack[ed] discretion to continue to withhold” while imposing a suspended 

sentence.

On appeal, Appellant challenges the notion that a suspended sentence is the 

equivalent of an actual prison sentence for purposes of adjudication of guilt. As 

Appellant rightly acknowledges, there are no cases directly on point, but analogous 

case law and relevant statutory directives guide us to conclude that the trial court did 

have the discretion to withhold adjudication even while imposing a suspended 

sentence under the present circumstances.

We begin our analysis with the general proposition that a probationary period 

“is not a ‘sentence.’” State v. Summers, 642 So. 2d 742, 744 (Fla. 1994) (citing 

Villery v. Fla. Parole & Prob. Comm’n, 396 So. 2d 1107)); see also Landeverde v. 

State, 769 So. 2d 457, 462 (Fla. 4th DCA 2000). Furthermore, under the terms of 

section 948.01(2), Florida Statutes (2014), the trial court, “in its discretion, may 

either adjudge the defendant to be guilty or stay and withhold the adjudication of 
4

guilt. In either case, the court shall stay and withhold the imposition of sentence upon 

the defendant and shall place a felony defendant upon probation.” The trial court 

also has the option provided in Section 948.012, Florida Statutes (2014), to impose 

a split sentence of probation or community control and imprisonment. As authorized 

by the legislature in section 948.012:

(2) The court may also impose a split sentence whereby the 

defendant is sentenced to a term of probation which may be followed 

by a period of incarceration . . . as follows:

(a) If the offender meets the terms and conditions of probation or 

community control, any term of incarceration may be modified by court 

order to eliminate the term of incarceration.

See also State v. Powell, 703 So. 2d 444 (Fla. 1997) (holding that “a trial court may 

impose a true split sentence in which the entire period of incarceration is 

suspended”).

We read the language of the foregoing statutes as granting the trial court broad 

discretion in fashioning a term of probation when “the ends of justice and the welfare 

of society do not require that the defendant presently suffer the penalty imposed by 

law.” § 948.01(2), Fla. Stat. (2014). Section 948.012(2)(a) authorizes the trial court 

to modify any term of incarceration “to eliminate” it altogether should “the offender 

meet[] the terms and conditions of probation . . . .” Logically, if the serving of a 

suspended sentence hinges on whether or not the defendant first successfully serves 

his or her term of probation, it is merely inchoate. That is to say, under those 
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circumstances, no sentence has yet to be imposed. Of course, under section 

948.012(2)(a), the trial court still retains the discretion to impose sentence. But the 

statutory authority makes clear that only upon imposition of sentence or upon the 

revocation of the defendant’s probation does the trial court lose its discretion to

withhold adjudication of guilt. See § 948.06(2)(b) & (e), Fla. Stat. (2014); State v. 

Countryman, 132 So. 3d 922 (Fla. 1st DCA 2014); State v. Curilly, 126 So. 3d 1244 

(Fla. 1st DCA 2013); Tucker v. State, 78 So. 3d 36 (Fla. 3d DCA 2012). In 

Appellant’s case, the trial court did not revoke his probation.

We hold, therefore, that the trial court erred in believing it had no choice but 

to adjudicate Appellant guilty because it had imposed a conditional suspended 

sentence. Certainly, the trial court had the discretion to adjudicate Appellant guilty,

as section 948.01(2) permits, but it was not required to do so under the particular 

circumstances of this case. Accordingly, we reverse and remand for further 

proceedings consistent with this opinion. On remand, the trial court may reconsider 

the issue of adjudication of guilt, but its choice to do so is governed by its discretion 

and is not mandated.

REVERSED and REMANDED.

WETHERELL and BILBREY, JJ., CONCUR.