Opinion
No. 88-0421.
May 17, 1989.
Appeal from the Circuit Court, Broward County, Stanton S. Kaplan, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, Robert S. Jaegers, and Joan Fowler, Asst. Attys. Gen., West Palm Beach, for appellant.
Daniel L. Tedesco and David A. Corden, Fort Lauderdale, for appellee.
The defendant was sentenced to time served and adjudication was withheld. This was improper and we reverse.
Under Florida Rule of Criminal Procedure 3.670 and Thomas v. State, 356 So.2d 846 (Fla. 4th DCA 1978), adjudication cannot be withheld if a jail term is imposed. However, adjudication can be withheld if the defendant is put on probation rather than incarcerated. See State v. Scarantino, 543 So.2d 399 (Fla. 4th DCA 1989).
Since both the defendant and the state were satisfied with the withholding of adjudication, we remand to the trial court with instructions to impose probation with a condition that the defendant serve two days in jail, with credit for the two days which she has already served. See § 948.03, Fla. Stat. (1987); Smith v. State, 484 So.2d 581 (Fla. 1986); Lewis v. State, 298 So.2d 540 (Fla. 4th DCA 1974); State v. Williams, 237 So.2d 69 (Fla. 2d DCA 1970).
REVERSED AND REMANDED.
LETTS, DELL and WALDEN, JJ., concur.