If I received a with hold in my criminal case, does that mean I am convicted for employment purposes?
"have you ever been convicted of a crime even if adjudication has been withheld" its for a manager at a store
5 attorney answers
"No I have not been convicted of a crime but yes I have received a withhold of adjudication."
You cannot answer the question accurately without stating what I just typed.
A "withhold" is a legal concept which the Florida Supreme Court has recognized as being a means to withhold the adjudication of guilt (conviction) even though you have been found guilty by a Court. It is recognized as a matter of Florida law but this is not necessarily true as far as other jurisdictions are concerned (i.e. other sovereigns, be them States or not, do not have to recognize the "withhold" as a legal entity and may, as the federal court system chooses to do, instead consider a withhold to be the very same thing as a conviction).
In Florida you do not have to admit to being convicted if you only have a withhold, but if you are asked about the withhold and you do not fess up then you are likely to be branded a liar.
Further, insofar as background checks go, many withholds can be sealed but you may still need to disclose even a sealed case, depending upon where you are applying, what you are applying for and the nature of the application question asked.
For example, your very case: The question asks "have you ever been convicted of a crime even if adjudication has been withheld" and, again, the only accurate answer is: "No I have not been convicted of a crime but yes I have received a withhold of adjudication.", and you can expect this answer to raise additional questions.
My advise: A) Answer as I indicated and B) consider either attaching either or both a copy of the police report and / or a certified disposition of your case along with an explanation. While some employers will disqualify you for merely having been arrested (much less receiving a withhold) almost all will appreciate your honest disclosure. Moreover you will "take the wind out of the sails" by telling them about your past up front rather than them finding out about it afterward during a background check.
I hope that I have been helpful in answering your question.
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Its an unfair question. The answer is "yes". Usually they have another question which is, "If you answer yes to the last question, please fill in the blanks below" ... yada yada ...
This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any attorney-client relationship. You should consult with a competent attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public forum, those answers you do read are merely given for informational purposes only.
This is a tricky question, and will ultimately come down to you using your judgement. Under Florida law, a with hold is NOT a formal conviction...in fact people who have been charged with a felony and were given a with hold, can still vote, possess weapons, etc.
You were not formally convicted but you did receive a with hold. I understand the realities of having to find a job in this economy, so you are incredibly wary. I would suggest that you seal your record. If you were to seal your record then you can legally deny your arrest and disposition of your case, with exceptions that are too myriad to list out here. You should consult with local attorneys regarding the sealing of your record and the process and how much it costs. It is relatively inexpensive as far as legal services go. My advice is to start the process now since it takes a few months.
Also you should be aware that a federal law- the Fair Credit Reporting Act, imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:
Get the applicants written consent ahead of time.
Tell the applicant if the employer intends to disqualify him or her based on the contents of the report.
the employer must also give the applicant a copy of the report.
And, notify the applicant after the employer makes a final decision not to hire him or her based on the information in the report.
get your record sealed ASAP if you qualify. Call local attorneys to find out if your eligible. Many of us provide free consultations.
Mr. Haber did an excellent job of explaining what is at stake. Also, consider that there are certain profession, for ex: law enforcement, certain medical fields, security clearance employment that will want to know everything, regardless of withholds and/or expungements.
Be cautious as to how you answer this question, but it is not a conviction.
Richard A. Alexander, Esq.
Posting an answer to your question does not create an attorney / client relationship such that you can or should rely on the information provided herein to take action. Instead, it is intended to simply provide you with information. I am not your lawyer and cannot provide you with legal advice unless and until I am hired to do so
Mr. Haber did an outstanding job of explaining what a withhold of adjudication means. It is a creature of Florida law.
I only write to add that if you otherwise qualify, you should visit a criminal defense attorney for the purposes of securing the sealing of your arrest and court records, as well as the fact that adjudication was withheld on a case.
When your arrest and court record is sealed, you can and in most circumstances and subject to some few exceptions, legally answer that you have never been arrested or convicted of a crime. Your lawyer can make sure that after an order sealing your record is signed by the judge, any websites that contains this damaging information immediately remove it under penalty of contempt of court or by the filing of a lawsuit under the fair credit reporting act.
I have been very active in persuading these extortionist companies to remove any damaging information from my clients records and this threat has been very effective. After 10 years, your lawyer can move that the record be expunged. A sealed record can be reopened upon a showing of good cause, an expunged record may not.
Although law enforcement will have an indication that a record was sealed or expunged, they will not be able to see an expunge record and will only have limited access to a sealed record unless you personally provide a certified copy of it. The clerk will not provide a record of a sealed or expunged record to anyone except you or your attorney of record.
In your question you are asking whether you must answer that you were convicted or not. Mr. Haber suggests a very fair and truthful way of answering your question.
Unfortunately, many employers do not care whether you had a conviction or not, if you were arrested, they will disqualify you. This is why it is important to either seal or expunge your arrest and court records whenever you have an opportunity to do so.
To conduct this process correctly, I highly recommend you see a criminal defense attorney. It should not be that expensive to do so, and it may save you a ton of money and embarrassment in the future. Good luck in your employment pursuits. CriminalDefendant.com
If this answer helped you, please be so kind as to mark it "helpful" or "best answer". This would be greatly appreciated. Remember, this is not legal advice from Criminal Defense Lawyer Albert Quirantes, or the Ticket Law Center in Miami, Florida and there is no attorney client privilege created in this communication. Don't squeal on yourself by making admissions on this public website. Only ask theoretical questions of a general nature for your own protection.