Six Important Facts About Withholds of Adjudication in Florida
Many citizens both familiar and unfamiliar with the criminal justice system in Florida frequently misunderstand what withholds of adjudication are and what their effect is on a case. Some essential facts about "withholds" include:
A withhold is not a conviction.In Florida, a judge has the ability to prevent a person from being convicted on a case. The Court's ability to withhold a conviction is why we have "Withholds of Adjudication." More often, it is a plea bargain
between the prosecutor and the defendant which produces withholds. Withholds are received upon a plea of "guilty" or "no contest."
Withholds are available in both misdemeanor and felony cases (subject to exceptions for higher degree felonies). The effect they have is oftentimes tremendous. For instance, a person who is convicted of any drug crime, including marijuana, is subject to a one year drivers license suspension by statute. However, receiving a withhold allows that person to keep his or her driving privileges.
The effect of the withhold is even more substantial for felony charges. Receiving a withhold allows more than the random/odd benefit. Receiving a withhold prevents that person from becoming a convicted felon. The stigma of the status of a convicted felon is very real. With voting rights, gun rights, and certain housing rights on the line, the fight over whether or not a person receives a withhold of adjudication could not be more important. A person in this situation should immediately seek counsel.
The benefits of preventing a conviction are oftentimes colossal. Withholds truly can change peoples lives.
A withhold is not a dropped case and will appear on a background check.Unfortunately, defendants sometimes misunderstand what a withhold is. A withhold can ONLY be given after a plea of "guilty" or "no contest" to a criminal case. And because there is a plea entered and a sentence imposed, it becomes part of a person's criminal record. Unless the state attorney announces that a case is dropped/dismissed or the person is found not guilty after a trial, the case is not dropped.
This confusion frequently plays out when a defendant later applies for a job. A withhold of adjudication will almost always show up on a person's background check. Individuals who have received one should be prepared to answer questions about that charge.
However, there is a benefit. On a job application, if the question is phrased as, "have you ever been convicted of a crime?" a person who received a withhold can ethically answer "no." However, if that person's question is "have you ever entered a plea of guilty or no contest to a crime?" they must answer "yes."
A withhold can be sealed/expunged from a criminal record.While a withhold will show up on a person's criminal history, they can sometimes be sealed and later expunged from someone's criminal record. This is a fantastic benefit that is otherwise impossible after a guilty or no contest plea. Defendants may have recourse after their case and sentence is completed.
Unfortunately, like everything in law, this is subjected to many requirements and exceptions. For example, a person who has received a conviction/adjudication on ANY other criminal charge cannot have their withhold sealed. This includes a conviction for a charge as minor as No Valid Driver's License. A person should be familiar with their criminal background before seeking to seal their charge.
Additionally, there are many specific crimes that are unable to be sealed. The list is extensive, and oftentimes includes crimes of violence. The most common issue is when someone receives a withhold for a domestic battery charge. A domestic battery charge cannot be sealed, however a charge of simple battery can. This distinction is crucial.
Defendants and attorneys should be mindful of which withholds can be sealed and which can't. The Florida Department of Law Enforcement (FDLE) is a helpful resource. The FDLE's seal and expunge division's website is below and should be utilized.
A withhold is usually reserved for first-time offenders.Withholds are very commonly offered by prosecutors when the defendant is a first-time offender. Obviously, the longer the rap sheet, the more difficult receiving one becomes. When there is an extensive criminal history, receiving a withhold is oftentimes a near-impossible task.
Difficult situations can arise when individuals have a long misdemeanor criminal history, but are arrested for their first felony charge. A defense attorney in this situation should seek to mitigate and downplay the history and stress the importance of preventing a first time felon from becoming a convicted felon.
Finally the ability to receive a withhold on charge is limited. For instance, withholds are impossible for first-degree felony cases and up. Additionally, while they are available for second-degree felony charges, it is oftentimes difficult to receive and will likely require approval by the Court. They are available for almost every third-degree felony charge.
A withhold is unique to Florida.Withholds of adjudication are available in Florida, but are often not recognized by the federal government or by other states. For instance, military branches and other federal government agencies consider withholds "convictions" even though it is not a conviction in Florida. Therefore, people seeking to enlist in the military should be wary of entering a plea bargain even for a withhold of adjudication.
For this reason, courts in other jurisdictions may well recognize a withhold as a conviction as well. This becomes important when individuals pick up charges outside of Florida after receiving a withhold. Courts and prosecutors out-of-state should be mindful and educated about what withholds in Florida are in these scenarios.
A withhold is an important tool available to youEven with its limitations, withholds are crucial tools at the defense attorney's, prosecutor's, and Court's disposal. Whether a withhold should be given is a frequent topic of conversation between prosecutors and defense attorneys in negotiating a plea. It's ability to prevent the person from the stigma of becoming a convicted felon makes receiving a withhold astronomically important. While defendants and defense attorneys would almost always prefer a dropped charge or a pretrial diversion program, the ability to receive a withhold gives defendants a very real and oftentimes tangible advantage.
This advantage is worth protecting. Anyone who is on probation after receiving a withhold should be especially careful not to violate. The Court will oftentimes adjudicate/convict that person upon a violation. Oftentimes an attorney's #1 priority in violation of probation cases is maintaining the withhold that was granted by the Court.
If you have a pending criminal case, seeking a withhold of adjudication in your current case, received a withhold and violated your probation, or looking to see if you are eligible to seal/expunge a prior withhold, it is important to seek out counsel who not only knows what withholds are, but know when they are available and know the practical effect that withhold will have on your future.