Wykretowicz v. State

PER CURIAM. AFFIRMED. EVANDER, C.J., and EISNAUGLE, J., concur. LAMBERT, J., concurring specially with opinion. LAMBERT, J., concurring specially with opinion. Stanley Wykretowicz was convicted after trial of culpable negligence, a lesser-included offense of the charged crime of neglect of a child causing great bodily harm. Because Wykretowicz has not shown reversible error here, I agree with the affirmance of his conviction. I briefly write to address the sentence imposed. The trial court withheld an adjudication of guilt and sentenced Wykretowicz to serve sixty days in the county jail with sixty days of jail credit. This was improper. See State v. Scarantino , 543 So.2d 399, 399 (Fla. 4th DCA 1989) ("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."). Based upon the trial court's intent to withhold an adjudication of guilt here, it should have placed Wykretowicz on probation, withheld the adjudication of guilt, and imposed the sixty days of incarceration as a special condition of the probation. See Tucker v. State , 78 So.3d 36, 37 n.3 (Fla. 3d DCA 2012) (citing State v. Green , 581 So.2d 1008, 1009 (Fla. 4th DCA 1991) ). However, because the State has not challenged the sentence in this direct appeal, this issue has not been preserved for our present review.