Withhold of Adjudication

Withhold of Adjudication

It’s never an easy situation to be arrested and charged with a crime. The process of navigating the difficult and complicated court system is extremely stressful and if you go to trial and are convicted, the effects of this are long-lasting, even permanent depending on the conviction. What if there were an option for you to avoid being found guilty of the crime you were charged with if you met certain terms and conditions? Well, you are in luck, because in many cases criminal defendants can be eligible for a plea bargain called a Withhold of Adjudication. Let’s dive into this matter and explain what this is and how exactly it works.

Judges in the state of Florida have a special authority vested upon them to withhold adjudication in criminal matters pursuant to Florida Statute §948.01. This statute grants the courts the ability to withhold adjudication after imposing a sentence of a period of probation without imposing an adjudication of guilt on the defendant, thus saving the defendant from the collateral damages that accompany a criminal conviction. However, it is important to note that this judicial ability is not just for criminal cases, but for certain civil matters as well.

Most lawyers view withholding adjudication as a suitable compromise for the amicable resolutions of criminal cases. In cases that are eligible and granted a withhold of adjudication, the defendant agrees to pay any fines as well as to serve a period of probation in exchange for the state’s acquiescence to such withholding. Upon the successful completion of the term of probation, the court relinquishes jurisdiction and the defendant is not found guilty. Florida Statute §948.04 states that upon the termination of the period of probation, the probationer shall be released from probation and cannot be sentenced for the offense for which the probation was allowed. 

In cases where withhold of adjudication is issued, these actions have promoted the judicial economy and leniency for uncharacteristic behavior by removing the conviction from the adjudicatory process. There are many benefits of this. In misdemeanor cases, a withhold allows the defendant to escape collateral consequences such as driver’s license revocation in drug matters and points on the defendant’s license in the case of traffic infractions. However, the benefits of withhold of adjudication are more far-reaching than this. When adjudication is withheld, a defendant can legally select no on employment and other applications that inquire whether the defendant has ever been convicted of a crime. 

Unfortunately for some defendants, the benefit of a withhold has come under significant attack in recent years. There have been language written into a number of statutes that specifically voids the advantage of a withhold. The most dramatic of these is the DUI statute which now contains language expressly prohibiting the court from withholding adjudication. Also, the statutes regarding sealing and expungement of records prohibit the removal of certain offenses from public record regardless of whether the defendant has had adjudication withheld. The criminal offenses that are disqualified for sealing or expungements by this statute include acts of domestic violence, arson, aggravated assault and battery, illegal use of explosives, child and elderly abuse, hijacking and carjacking, kidnapping, homicide and manslaughter, sexual offenses, communications fraud, offenses by public officers or employees, robbery, burglary of a dwelling, stalking and attempts or conspiracies to commit the underlying offenses. 

In 2004, the Florida state legislature passed F.S. §775.08435, which prevents the court from applying withholds in any capital, life, or first-degree felonies and severely limits the application in second-degree felony cases by requiring either a written motion from the state attorney or express judicial findings pursuant to F.S. §921.0026 which applies to all noncapital felony offenses which occurred after October 1, 1998. This statute dictates that the court may consider mitigation to include the terms of a plea bargain, the defendant’s minor role in the offense, the incapacity of the defendant to appreciate the criminal nature of his or her conduct, the defendant’s need and amenability for specialized treatment for a mental disorder, the need for the payment of restitution, the victim’s role in the incident; duress of domination over the defendant, the compensation of the victim prior to the identification of the defendant, the defendant’s cooperation with the investigation, the unsophisticated manner of the isolated incident, and the youth of the defendant and the inability to understand the consequences of his or her actions. It is interesting to note that the statute specifically precludes the consideration of the defendant’s intoxication and substance abuse or addictions. 

Also, case law has changed the way that withholds are to be treated when issued. The Florida Supreme Court has held that a guilty plea or verdict with withhold of adjudication constitutes a conviction that could be considered as an aggravating circumstance in a capital sentencing proceeding. The court’s reasoning for this is the word convicted as used in F.S. §921.141(5)(b) means that a valid guilty plea or jury verdict of guilty for a violent felony and that an adjudication of guilt is not necessary for such a conviction to be considered in the capital sentencing character analysis. Additionally, the Florida Supreme Court has also held that the term conviction as used in the statute that provides for increased sanctions for a third conviction for driving with a suspended driver’s license includes offenses for which adjudication was withheld. The reasoning behind this is that a common sense reading of the F.S. §322.34 indicates that the legislature intended the term conviction to mean a determination of the defendant’s guilt by means of plea or verdict. On this reasoning, the court concluded that it is clear that Florida Legislature intended that a conviction, for the purpose of the statute, is to include both adjudications and withholds. The exception to this is made in cases where the disposition is made pursuant to F.S. §318.14(10), which allows individuals cited with civil traffic infractions to choose to attend a traffic school in exchange for withholding of adjudication and no assessment of traffic points.

In addition, government agencies on the state level have also added provisions to their employment regulations that specifically indicated that a plea and a judgment, regardless of whether or not adjudication was withheld, is considered a conviction and may cause an employee to be denied a job or terminated from his or her job if the defendant is a current government employee at the time. This is not just the case in the state of Florida. Government agencies on the federal level, as well as in some other states, do not recognize the withhold of adjudication as there are no parallel provisions in those jurisdictions. This effect is the most dramatic in the cases of federal prosecutions for charges of possession of a firearm by a convicted felon. This is because the withhold of adjudication for a similar felony in the state of Florida may satisfy the base requirement for a federal felony conviction. 

It is curious to note that not all districts in the state of Florida agree with this line of thinking in regards to withhold of adjudication. The Southern District of Florida has repeatedly held that a withhold is not a conviction that can be treated as a basis for a felon charged with possession of a firearm U.S.C §922. It should be noted however that the criminal history calculation within the federal sentencing guidelines continues to calculate a withhold as a prior sentence for the purpose of calculating criminal history points. Additionally, defendants who are resident aliens may be subject to deportation or exclusion from the United States due to felonies and certain misdemeanor offenses that qualify as moral turpitude. Such offenses are considered convictions regardless of whether or not adjudication was withheld. 

Because of these arbitrary changes, many civil practitioners have changed their traditional discovery demands in regards to applications by adding questions with regards to arrests, participation in diversionary programs, and pleas of guilty or no contest. On job applications, many employers now ask if an applicant has been a defendant in a criminal proceeding with no regard to adjudication or ask if an applicant has ever pled guilty or no contest or if a determination has been made by a court in any case where the applicant was a defendant. Many parents have found themselves unable to chaperone school functions for their children or volunteer at school fundraising events because now school board administrative rules now include a provision that disqualifies volunteers due to prior conduct with no mention or regard to convictions. Many school boards in the state of Florida regard pleas of no contest, or nolo contendere, as prior offenses regardless of any withhold of adjudication.

The Florida Bar has even jumped onboard and nullified the benefits of the provision of withhold of adjudication in regards to attorneys. In a recent amendment to the Rules Regulating the Florida Bar, a change was made to a rule that previously had required attorneys to only report felony convictions to the Bar. As amended, Rule 3-7.2(e) now states that any decision entered after August 1, 2006, now requires attorneys to report any such determination or judgment of guilt to the executive director of the Florida Bar. 

So what does this mean to law-abiding citizens?  Simply put, under these new arbitrary rules, extremely minor offenses like having an open container of alcohol on a beach or having a heated argument in the midst of a difficult divorce can now become a mark on a person’s record, giving them a criminal history. This can in turn hurt an individual’s chances of employment, affect their insurance rates, and even bar the individual from being allowed to volunteer in the community. No longer does an individual have a second chance by avoiding adjudication. This means that momentary lapses of judgment now can potentially haunt individuals for the rest of their lives. 

This obviously begs the question of what can you do if you find yourself in this situation. The first option you have to diffuse the damage caused by a criminal record is to attempt to avoid the filing of charges by the state. The state attorney prosecuting a case has the power to determine if an information will be filed or an indictment sought. If defense counsel is successful in procuring a no information, the case is never filed which avoids the withhold issue altogether. The second option is to pursue possible options to avoid a sentence. This may mean to try the case and attempt to obtain an acquittal, or it may mean entering into some type of intervention program that results in a dismissal or a no prosecution or nolo prosequi, or it may mean a negotiated plea with concession, which allow for the withhold of adjudication.

The crucial thing for defense attorneys to do in all criminal cases is to inform the client of the possible legal consequences, including all of the collateral consequences, that they may face months or even years after the conclusion of the criminal case in order to allow them to make an informed decision. Civil attorneys need to be aware of what is admissible and proper in order to know how to accurately phrase and answer discovery demands as well as deposition questions. These practitioners must also analyze prior withheld sentences to determine whether or not the underlying facts are admissible as evidence in civil litigations. As an example, even though a withhold of adjudication may not be admissible as impeachment evidence of a conviction under F.S. §90.610, there may be a sufficient basis to admit the evidence as character evidence of other crimes, wrongs or acts under F.S. §90.404(2). Simply taking a bit of time to review the rules of evidence may make the difference between a line of inadmissible testimony as opposed to a masterfully crafted line of damaging evidence. 

If you find yourself facing criminal charges, do not agree to anything on your own. Contact our office immediately at 407-278-7177 to discuss your options. We will review your case and provide you with advice on the best decision for your individual case. 


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Young B. Kim

Young B. Kim is a criminal defense attorney in Apopka, Florida. He has a degree in political science from the University of Central Florida; A master's degree in political science at Albert-Ludwigs-Universitaet (This is a university in Freiburg, Germany), all before graduating with a Juris Doctor from Florida A&M University College of Law. Mr. Young Kim uses his knowledge and passion to protect local businesses, falsely accused, and the elderly.

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