Withhold of Adjudication: One Free Bite at the Apple

What is a Withhold of Adjudication?

A "Withhold" is a special sentence in which the judge orders probation but does not formally convict the defendant of a criminal offense. Florida Statute s. 948.01 vests Florida judges with the authority to withhold adjudication after the judge imposes a probation sentence. Florida Statute s. 948.04 states that at the conclusion of the probation sentence the judge must release the defendant from probation without any additional sentence for the underlying offense. A withhold of adjudication is not a conviction. Therefore, the defendant avoids the negative consequences that result from a criminal conviction. And the court avoids the time and expense of adjudication. The withhold of adjudication essentially forgives individuals for uncharacteristic behavior. The withhold of adjudication allows the defendant "one free bite at the apple" to avoid the stigma of a criminal conviction on his or her record.

When is it applicable?

A "Withhold" is most often applicable when a defendant is facing his or her first misdemeanor or felony conviction. But in appropriate circumstances judges may withhold adjudication even if the defendant has prior convictions or withholds.

Is the criminal charge "dropped" in a "Withhold"?

No, the charge is not dropped. Instead, adjudication of guilt is withheld. For "dropping" criminal charges, there is a procedure that is totally different than a "Withhold" in which defendants can enter a diversion program and upon completion of the program, the state attorney drops the criminal charge.

What are the advantages of a Withhold of Adjudication?

We take every step necessary to obtain a "Withhold" for our clients if they qualify, and if it is appropriate in the particular case. Having a criminal charge "withheld" is an excellent alternative to a conviction. The individual will not have to report a criminal history for that crime on job applications if the question on the application is phrased "Have you ever been convicted of a crime?" The individual has not been "convicted," because the conviction has been "withheld" so he or she can ethically respond "no" to that question. The ability to honestly say one has no criminal convictions can make all the difference in the world in a search for that perfect job.

Having a conviction on one's criminal record can also affect his or her ability to obtain credit or rent an apartment. If the convictions is a felony, the damage to one's personal freedoms is more severe. A felony conviction prevents an individual from enjoying the right to own a firearm. But if a felony conviction is withheld, the individual may retain the right to possess a firearm. Further, a defendant may avoid forfeiting other civil rights such as the right to vote and the right to serve on a jury through a withhold.

The taint of a felony conviction can also affect someone if he or she ever appears as a witness in a court proceeding. In Florida, a cross-examining lawyer is always permitted to ask a person who takes the witness stand if he or she has ever been convicted of a felony or a crime involving dishonesty or false statement (examples of crimes involving dishonesty or false statement are petty theft and shoplifting). But if the conviction is withheld, the lawyer cannot even ask the question. Withholding adjudication on an offense can also prevent an individual from getting points on his or her driving record. If adjudication is withheld on a possession of marijuana or cocaine charge, it could stop the defendant from losing his or her license for 2 years.

Withholds allow one to seal some offenses if the individual has not been convicted of other crimes in the past. Sealing and expunging are discussed more in the article entitled Sealing & Expunging on this website.

What are the limitations of a Withhold of Adjudication?

The "Withhold," however, has limitations. One important limitation is that the ability to respond "no" to background questions like the ones on job applications is limited to the wording of the question. For instance, if a question on a job application asks if one has been arrested or been a "defendant" in a government proceeding then one would still have to answer "yes."

Another source of limitation on withholds is that the Florida legislature has written limiting language into criminal statutes that dilutes the advantage of withholding adjudication in several instances. Some crimes cannot be "Withheld," and other crimes can be "Withheld" but cannot be stricken from your record. Perhaps most applicable to the average person is that adjudication for the crime of driving under the influence (DUI) cannot be withheld.

Capital, life, and first degree felony adjudications also cannot be withheld pursuant to Florida Statute s. 775.08435. Likewise under the same statute, second degree felony convictions cannot be withheld unless one of two conditions are met. First, the prosecuting attorney can request that adjudication be withheld. Or the court finds that the facts and circumstances of the case warrant a withhold of adjudication. Section 926.0026 of the Florida Statutes lists the facts and circumstances that the court may consider in this situation. Third degree felonies may be withheld. If the defendant seeking to withhold adjudication of a third degree felony has a prior withhold of adjudication for a felony, however, the court may not withhold adjudication unless one of the two conditions above are met. In any event, a defendant with two or more prior withholds may not obtain a withhold of adjudication of any felony.

Another limitation affecting "Withholds" is that some crimes for which the defendant obtains a withhold of adjudication cannot be sealed. Domestic battery is notable, but the list also includes kidnapping, manslaughter, sexual offenses, burglary, and aggravated assault as well as others.

Another limitation of withholds is that they are scored the same as convictions on the sentencing guidelines. Sentencing guidelines are used by prosecutors to determine the appropriate sentence in a felony case. Similarly, withholds are treated as convictions when deciding whether to label an individual as a "violent career criminal," a "three-time violent felony offender," a "habitual felony offender," and a "habitual violent felony offender." If one is convicted of a capital felony, a past withhold of adjudication can be considered by the sentencing court as an aggravating factor in determining whether to sentence the defendant to the death penalty. The Florida Supreme Court has also held that withholds of adjudication for the crime of driving with a suspended driver's license are treated as convictions for purposes of determining whether one shall receive a five year habitual traffic offender suspension.

The limitations of a withhold compound at the Florida state line. Entities not associated with or located outside the state of Florida, most notably Federal agencies, do not recognize the positive consequences of withholds and consider a withhold equivalent to a conviction.

What are some alternative solutions if I don't qualify for a "Withhold"?

There are several alternatives that the Law Office of Tim Hessinger can pursue for its clients besides withholds. For example, the Law Office of Tim Hessinger can try to "affect the filing (charging) decision." The filing or charging decision is the decision made by state attorney(s) to file or refrain from filing formal criminal charges. In Pinellas County, the greatest opportunity to help a person that is facing potential criminal charges is by affecting the prosecution charging decision. When our clients come to us early enough, as in before a charging decision is made, we have been very successful in affecting the charging decision by telling your side of the story or providing the state attorney with mitigating information. In pursuing this course of action, we write a letter to the state attorney assigned to our client's case. In that letter, we explain the weaknesses and any mitigation surrounding one's arrest and attempt to persuade the prosecutor not to file charges.

If charges are filed, the Law Office of Tim Hessinger has many options to construct a sound legal defense. Trial, a negotiated plea, and a dismissal are all viable options to help an individual resolve the charge. Tim Hessinger has more than 20 years of experience with the criminal justice system in Pinellas County; he will know what the best course of action is for you to obtain the best possible result. Contact us immediately for a free initial consultation. We serve St. Petersburg, Clearwater, and the Tampa Bay area.

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