What's the difference between being adjudicated guilty of a crime, or having adjudication withheld, and, why should you care? When a judge "withholds" adjudication, the defendant is not convicted of the crime. That's a good thing. A withhold allows you to answer "NO" to the common job application question: Have You Ever Been Convicted of a Crime? On a felony case, for example, if a "withhold of adjudication" is received, the person can claim that he has never been "convicted" of a felony--thus you can still vote, still own a firearm, etc., due to the fact that the withhold of adjudication means 'not convicted of the crime'. Another benefit of a withhold of adjudication is that it may allow for a later petition to seal and expunge (such is not the case if a person is adjudicated guilty, adjudicated guilty prohibits all petitions to seal or expunge).

WHEN CAN A COURT WITHHOLD ADJUDICATION?

However, even though a person receives a withhold of adjudication, some courts still treat it as though the person was convicted or adjudicated guilty. The prime example of this is United States immigration laws, whereby our federal government ignores whether or not a person was adjudicated guilty or adjudication withheld. For immigration purposes, a withhold of adjudication carries the same negative impact as if the person were actually adjudicated guilty.

Not all cases qualify for a withhold of adjudication. Examples of such crimes include any first degree felony offenses. For Second Degree felony offenses, the general rule is that the court may not withhold adjudication, but can withhold if the state attorney requests a withhold in writing, or if the court makes a written finding that the withholding of adjudication is justified based on the criteria set forth in Florida Statutes Section 921.0026 (same as the reasons for a downward departure sentence). There's also a limitation on the number of withholds a person can receive. Adjudication cannot be withheld on a second degree felony if the defendant has a prior withhold on a felony. The same rules apply to Third Degree felony charges, but the limitation applies for those that have two or more prior withholdings on a felony. (Withholds on juvenile offenses do not count towards the above analysis)

If a court does withhold adjudication, it must place the defendant on probation if the case is a felony, but probation is not required for misdemeanor withholds.

WITHHOLDS CAN EFFECT FUTURE CHARGE ENHANCEMENTS

No one plans on getting into trouble a second, third, or forth time. But, as the bumper sticks say, "Stuff Happens". Prior withholds of adjudication can be important for those caught stealing several times. Petit theft charges upgrade to felony theft charges with only two prior theft convictions. If a withhold of adjudication was received on a prior petit theft charge, that case does not count for enhancement purposes--as a withhold is not a 'conviction'.

On the flip side, Florida Statutes sometimes force the courts to 'ignore' a withhold when determining whether or not to enhance a sentence. The Court in Raulerson v. State, 699 So.2d 339 (Fla. 5th DCA 1997) dealt with a felony driving while license suspended (DWLS), enhanced due to prior misdemeanor driving while license suspended charges in which the defendant received a withhold of adjudication. The court held that under section 322.34(1), Florida Statutes, a prior withhold of adjudication for an offense of DWLS is sufficient to constitute a prior 'conviction' for the purpose of enhancement. Yes, this is the complete opposite of the enhancement rules under the theft statute, but that's why you need criminal defense attorney John Guidry to help you thru this legal maze. 

Withholds may also be issued on traffic citations.  But our Florida Statutes do not permit insurance companies to alter insurance rates/plans when a driver obtains a withhold of adjudication (on a traffic citation, a withhold means no points are assessed for the ticket).  Florida Statute 626.9541 (2012) states that "No insurer shall impose or request an additional premium, cancel a policy, or issue a nonrenewal notice on any insurance policy or contract because of any traffic infraction when adjudication has been withheld and no points have been assessed pursuant to s. 318.14(9) and (10).  However, this subparagraph does not apply to traffic infractions involving accidents in which the insurer has incurred a loss due to the fault of the insured."

There are several government entities that ignore withholds, basically treating the matter as though the citizen was convicted.  For example, when charged with a Federal crime, often a State offense may be used as an enhancement even though adjudication was withheld.  The same goes for immigration services, they treat withholds often in the same way as though the immigrant was found guilty.  I'm told our armed forces take a similar stance.  So, should you have any questions pertaining to withholds, or any other criminal matter, simply give Mr. Guidry a call for a free consultation.