Withhold Of Adjudication

What's the difference between being adjudicated guilty of a crime, or having adjudication withheld, and, why should you care? (I know what you're thinking, why devote an entire page to withholds?)

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.  Roughly speaking, a withhold of adjudication translates into plain English as '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, and being found guilty prohibits any seal or expunge).


No one likes being ignored.  And, no one likes ignoring its own people more than our government.  No, I don't mean the State of Florida.  I mean the Federal government.   Even though a person receives a withhold of adjudication, some federal courts ignore the withhold, and treat the citizen as though they were convicted (adjudicated guilty).  How crazy is that?  You go in front of a judge.  Your defense attorney tells you "Mr. Smith, you are not going to be found guilty of this crime, because the court is withholding adjudication."  The judge tells you "Mr. Smith, you are NOT convicted of this crime because I am withholding adjudication."   Do you think our federal government cares what a circuit court state judge rules?  Apparently not.  The prime example of this is United States immigration laws--our federal government ignores a withhold of adjudication.  In other words, for immigration purposes, a withhold of adjudication carries the same negative impact as if the person were found guilty of the crime.  And, if you're found guilty, you're going to be deported (for more info on this issue, see State and Federal Government Disagree on What Constitutes a Conviction)     


Not all cases qualify for a withhold of adjudication. First degree felony offenses do not qualify.  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, but such limitations are rarely followed.  For example, 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) 

Even though a court "cannot" withhold on certain cases, if it does so anyway, that withhold cannot be challenged by the state and later overturned, for technical reasons involving a court's ability to modify a judgment (the withhold) versus a sentence (probation, jail, fine).  For example, all trafficking charges require an adjudication of guilt.  Yet, in the case of Robinson v. State, the judge accidentally withheld adjudication.  757 So.2d 532 (Fla. 4th DCA 2000).  The prosecutor caught the mistake a week later and filed a motion to correct the illegal sentence.  The judge agreed that the withhold was illegal, so he "corrected" it by entering an adjudication.  The appeals court overturned the adjudication, holding that "the withhold of adjudication, although legally improper based on existing law, was not an 'illegal sentence'". Id. at 533.

Courts may modify sentences for various reasons, but modifying a withhold can only typically be done at the request of a defendant.  In other words, to change a withhold at a later time to a "conviction" would be to make a defendant worse off at a later date--this can't be done, legally.  The Robinson case above is but one example of a failed attempt.

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.

As a side note, there are exceptions to the rule that a judge may not withhold on a first degree felony.  A real life example of this can be found in Pacheco-Velasquez v. State. 208 So. 3d 293 (Fla. 3rd DCA 2016).  Pacheco pled to Robbery with a Weapon, a first degree felony punishable by up to life in prison.  The court sentenced Pacheco as a Youthful Offender and withheld adjudication.  The appellate court found that a withhold was perfectly legal because it was a youthful offender sentence.


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--because 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, we just got done telling you in the paragraph above that a withhold doesn't count as a "prior conviction" for purposes of upgrading theft charges.  Yes, this is the complete opposite of the enhancement rules under the theft statute.  Don't ask me why, I'm just giving you the law as it is written, I cannot explain the logic behind the law because there is none.   

Withholds may also be issued on traffic citations.  Florida law does 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." 


If you don't get a withhold of adjudication on a felony charge--welcome to the wonderful world of being a convicted felon.  Yes, it will be difficult to find a job.  But that's only the beginning.  No more voting.  Convicted felons do not have a right to vote.  No more Second Amendment, as convicted felons may not possess firearms. 

Finding a good job as a convicted felon is next to impossible.  So, naturally, you may seek our government's assistance but some government programs are not available to convicted felons. Numerous federal and state benefits are contingent upon the recipient not being a convicted felon (student loans, for example, and, even certain hurricane relief benefits were not available to convicted felons).

And then there's the issue of liability of a convicted felon.  Here's how this little known provision works.  Get convicted of a felony and liability for any underlying damages is automatically presumed in a civil suit.  Yep.  Civil liability is automatic.  Now, you can still argue about the amount of damages, but you cannot argue liability. For example, lets say you lose a self defense argument on an aggravated battery conviction.  The victim of the aggravated battery has already won the civil liability portion of the law suit as a result of the felony conviction.  You cannot re-try the facts of the self defense.  The only thing for the jury to decide on the civil case is the amount of the damages.  Ouch.

The consequences of being a convicted felon can be staggering (even a misdemeanor). That's why obtaining a withhold of adjudication is so important. Unfortunately, Florida law still treats non-felons as felons for certain purposes.  No, we are not quoting directly from George Orwell--this doublespeak  is compliments of the Florida legislature.  Let's take a look at how a citizen can be treated as "convicted", without ever having been convicted.

We all know that convicted felons must register with the sheriff's office.  This is based on Florida Statute 775.13, entitled "Registration of Convicted Felons".  The doublespeak within the statute notes that, for purposes of convicted felon registration, the term 'convicted' includes folks who received a withhold of adjudication!  What?   But, this registration requirement for felony withhold recipients only extends for 5 years beyond the sentence completion date. After that, no need to register.  My guess is that 99.99% of folks do not register under this statute.  Failing to register as a convicted felon (even if you were not convicted) is a second degree misdemeanor.  This law has not been enforced much, but its the law nonetheless. 

Many crimes in Florida are progressive, meaning that the punishment gets progressively worse as a citizen commits the same crime over and over.  Your first theft charge is a misdemeanor, but your third theft is a felony.  Your first prostitution charge is a misdemeanor, but your third is a felony.  A second DUI is worse than a first time DUI, and so forth, and so on.  In this way, a citizen may be deemed a "habitual felony offender" by accumulating several prior felony convictions--even though these "convictions" may have had adjudication withheld.  Fla. Stat. 775.084.

Also, a citizen's prior convictions are quantified on what is known as a "scoresheet".  Felony charges are "scored" by giving current offenses and prior convictions a point value.  However, even when a citizen receives a withhold of adjudication--that case will still be treated as though the person was found guilty of the crime.  See Fla. R.Crim.P. 3.701.

So, should you have any questions pertaining to withholds, or any other criminal matter, simply give Mr. Guidry a call for a free consultation.

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