What is an Adjudication and a Withhold of Adjudication?
Simply put, whenever you either plead guilty, or no contest, to a charge, or are found guilty after either a bench or jury trial, the judge has the option of either adjudicating you as guilty or withholding adjudication. If you are adjudicated guilty, then the court has entered that conviction upon your record. If the court withholds, then you are not convicted in the legal sense, but rather have had the judge decline, or withhold from, entering that conviction.
Withholds are often granted to first time offenders as a way to get the defendant to plead to the crime and yet allow the defendant to have "second chance" at avoiding a criminal conviction on their record.
The option to withhold adjudication is granted in cases where probation is sentenced under Florida Statutes Section 948.01, but for first time offenders, and sometimes for second offenses as well, the judge can withhold even without probation being a part of the sentence. However, there are exceptions.
What are the Benefits of a Withhold of Adjudication and What Are the Exceptions?
It used to be that a withhold of adjudication meant that defendants escaped most secondary consequences of a conviction, such as mandatory driver's license revocation in drug cases, points associated with traffic offenses, or forfeiture of civil rights, such as the right to vote, hold public office, and serve on a jury in the case of felonies. Receiving a withhold also allowed defendants to deny having a conviction on job applications asking whether they had ever been convicted of a criminal offense. Having a withhold is also essential in asking a court to seal a criminal record.
But these benefits are limited. Many crimes are no longer eligible for a withhold by statute and many exceptions exist for the purposes of sealing a record. Most of the limited crimes involve sex crimes, robberies and burglaries, violence or fraud and DUI. Additionally, many employers, including the U.S. government, may now consider a withhold to be the same as a full adjudication.
Other areas where the benefit of receiving a withhold of adjudication is limited:
For driver's license offenses, even a withhold in prior occurrences won't prevent them as being counted for increased sanctions in subsequent convictions. And for any capital sentencing character analysis, withholds can be included.
Aliens: Deportation is one consequence to consider for any alien contemplating a guilty plea or trial loss. For any conviction that qualifies as one involving moral turpitude, even resident aliens may be deported and excluded from the U.S. regardless of receiving a withhold.
Employment: As mentioned, the U.S. government no longer recognizes withholds in many cases. Additionally, local school boards may not be impressed by the fact that you received a withhold. And many employers ask on applications whether you have ever been a defendant in any criminal proceeding, regardless of the outcome. A withhold will not allow you to avoid mentioning your case.
Later Conviction Sentence Enhancement
You also need to be aware that later prosecution and convictions, particularly in federal court, can rely in many cases upon prior "convictions" where adjudication was withheld in order to enhance a sentence. These are usually through "habitual offender" or "career criminal" laws. A withhold and term of probation has recently been found to count as a conviction for the purposes of classifying a federal defendant as a career criminal in the 11th Circuit, for example.
The Bottom Line....
All things being equal, it is better to ask for and receive a withhold of adjudication. However, it may still cause issues in many cases. The best solution is to try and avoid prosecution in the first place. This means being proactive and having your attorney try to seek non-criminal sanctions as early as possible where possible. Diversion programs can accomplish this. And when negotiating a disposition, try to get the withhold as part of the deal. Judges can do so in many cases, even in second offenses, by entering, in writing, a ground for doing so that meets a certain legal standard. This is especially relevant for young people who may obtain a withhold, for even serious crimes, under the Youthful Offender provisions.
But always ask your attorney, given your circumstances and plans for the future, what you can expect from a withhold. Don't assume it means that you don't have a conviction, because in many instances that is simply no longer true.
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