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Withhold of Adjudication

If you enter a plea of guilty or no contest, or if you are found to be “guilty” at trial, then the court must decide at sentencing whether to enter an “adjudication of guilt” or “withhold adjudication.”

Information about whether the court withheld adjudication can be found on the judgment and sentence (often called the “final disposition form”) that was signed by the judge and filed the clerk of court.

If the court enters an adjudication of guilt, then you are “convicted” of the crime for all purposes. The adjudication makes you ineligible to seal or expunge that record or any record in Florida.

For some types of offenses, including a felony or domestic violence offense, the conviction means you become ineligible to possess a firearm or ammunition for the rest of your life.

But what happens if the court “withholds adjudication”? Pursuant to F.S. §948.01, judges in Florida are vested with the authority to “withhold adjudication” for certain types of criminal charges.

The withhold of adjudication usually occurs when a person is placed on probation for a first offense. Attorneys also use the term “withhold of adjudication” and “adjudication withheld.”

The concept of a “withhold of adjudication” does not exist in federal court. In other words, when a federal judge imposes a sentence in a criminal case, a conviction always occurs.

Attorney on the Withhold of Adjudication in Florida

If you have questions about the consequences of a withhold of adjudication, contact the experienced criminal defense attorneys at Sammis Law Firm.

We help clients seal their criminal record if the judgment and sentence shows that adjudication was withheld.

If you are unsure how your case was resolved, contact the clerk of court’s office in the county where the case was resolved to get a copy of the final disposition which might include a judgment and sentence.

If you retain us to seal or expunge your record, then we can obtain a certified copy of the final disposition on your behalf.

Call 813-250-0500.


Offenses Not Eligible for Withholding Adjudication

Florida law prohibits the court from withholding adjudication of guilt in certain types of felony and misdemeanor cases including:

  • the court may not withhold adjudication of guilt upon a defendant for a capital, life, or first-degree felony as explained in Section 775.08435(1)(a), F.S.;
  • for a second degree felony, the court cannot withhold adjudication unless either the state attorney makes a written request to do so, or the court makes written findings that a withhold of adjudication is reasonably justified based on the circumstances or statutorily recognized mitigating factors;
  • the same prohibition and exceptions apply when a defendant has committed a third-degree felony and has a prior withholding of adjudication for another felony offense;
  • regardless of the presence of mitigating circumstances, a court may not withhold adjudication when a defendant has committed a second-degree felony and has a prior withhold of adjudication from a different offense;
  • the court may not withhold adjudication when the defendant committed a third-degree felony and has two or more prior withholdings of adjudication from a different offense as provided in 775.08435, F.S.

The Florida legislature recently amended 775.08435, F.S., to add an additional circumstance in which the court is prohibited from withholding the adjudication of a defendant unless certain exceptions apply.

The new law prohibits the court from withholding adjudication for a third-degree felony that is a crime of domestic violence unless:

  • the state attorney makes a written request for the adjudication be withheld, or
  • the court makes written findings that the withholding of adjudication is reasonably justified based on the circumstances or statutory mitigating factors.

The third-degree felony domestic violence offenses to which this prohibition would apply include:


Authority to Withhold Adjudication as Provided in Section 948.01

Florida Statute Section 948.01 vests judges in Florida with the authority to withhold adjudication after the court imposes a probation sentence. Section 948.01 provides:

If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt….

Avoiding a conviction is important because if a person receives a withhold of adjudication, the person might be eligible to seal the criminal history record.

Talk to a criminal defense attorney in Tampa, FL, to learn more about why it is important to avoid a conviction so that you do not lose your civil rights including your right to apply for a concealed weapons permit, vote in an election, hold an elected office, or possess a firearm.


What is the Purpose of Withhold Adjudication?

The purpose of withholding adjudication is rehabilitative, to avoid “damning consequences” including the loss of civil rights.

In Peters v. State, 984 So.2d 1227 (Fla. 2008), the Florida Supreme Court found that:

“[t]he purpose of the granting of probation … without an actual adjudication of guilt, is rehabilitation of one who has committed the crime charged without formally and judicially branding the individual as a convicted criminal and without the loss of civil rights and other damning consequences.”

Id. at 1231 (quoting Bernhardt v. State, 288 So.2d 490, 495 (Fla.1974).

In Lopez v. State, 509 So.2d 1334, 1335 n. 4 (Fla. 3d DCA 1987), the court concluded that the purpose of allowing the trial court to place a defendant on probation after he or she is found guilty after a plea or trial, without entering a formal judgment of conviction, is rehabilitative, and if the defendant completes his probationary period, he will not be a “convicted criminal with consequent loss of civil rights.”


If the Court Withheld Adjudication, Does it Count as a Conviction?

Because of the unique nature of a “withhold of adjudication” in Florida, questions often arise about whether the sentence counts as a conviction for some other purpose. So when is a withhold of adjudication counted as a “conviction”?

When the court withholds adjudication it does not count as a “conviction” for most purposes. In State v. McFadden, 772 So.2d 1209 (Fla.2000), the Florida Supreme Court adopted a definition of “conviction” that requires an adjudication of guilt or judgment of conviction by the trial court.

“[W]here the trial court withholds adjudication of guilt as authorized by statute and ‘stay[s] and withhold[s] the imposition of sentence,’ the court has found that ‘the defendant is not likely again to engage in a criminal course of conduct.’ ” McFadden, 772 So.2d at 1216 (quoting § 948.01(2), Fla. Stat. (1997)).

As the Florida Supreme Court recently recognized in Raulerson v. State, 763 So.2d 285 (Fla.2000), although an adjudication of guilt is generally required for there to be a “conviction,” that term as used in Florida law is a “ ‘chameleon-like’ term that has drawn its meaning from the particular statutory context in which the term is used.” Id. at 291 (quoting State v. Keirn, 720 So.2d 1085, 1086 (Fla. 4th DCA 1998)).

The court in Keirn concluded that “proper construction of the term ‘conviction’ requires a close examination of its statutory context and legislative history and development.” Id. at 1088.


Examples of When a Conviction Requires an Adjudication

Florida has a longstanding and consistent definition of “conviction” that requires an adjudication. For example, in State v. Barnes, 24 Fla. 153, 4 So. 560, 561 (1888), the court explained that although some definitions allow a finding of guilt to constitute a conviction, “numerous authorities [ ] hold the judgment or sentence to be a necessary component part of ‘conviction.'”

In Smith v. State, 75 Fla. 468, 78 So. 530, 532 (1918), the court held that when a “conviction” is an element of the offense, “[t]he meaning of the word ‘convicted’ as used in the statute … means the adjudication by the court of the defendant’s guilt.”

In Weathers v. State, 56 So.2d 536, 538 (Fla.1952), the court held that a “conviction” occurs when the jury returns a verdict of guilty and the judge “clinches the finding” by adjudicating the defendant’s guilt.

In Delta Truck Brokers, Inc. v. King, 142 So.2d 273, 275 (Fla.1962), the court found that “[t]he term ‘conviction’ has an accepted meaning in applying statutes of this nature [an auto transportation brokerage license statute]. It simply means a determination of guilt and a judgment of guilt by a court of competent jurisdiction in a criminal proceeding.”

In Castillo v. State, 590 So.2d 458 (Fla. 3d DCA 1991), the court held that for prosecution under section 790.23 the courts construe the term “conviction” to mean an adjudication of guilt because “[w]here adjudication has been withheld, the offender is not a convicted felon.” Id. at 461.

In State v. Menuto, 912 So.2d 603, 605–06 (Fla. 2d DCA 2005), the court held that for purposes of section 790.23(1)(a), “ ‘conviction’ means ‘adjudication of guilt’—a mere withhold of adjudication of guilt of the prior offense will not suffice.”


Examples of When a Conviction Includes a Withhold of Adjudication

The Fifth District in Clinger v. State, 533 So.2d 315, 316 (Fla. 5th DCA 1988), recognized that “for some limited purposes” the term conviction might mean a determination of guilt, regardless of whether adjudication was withheld.

For example, for purpose of sentencing under Florida Rule of Criminal Procedure 3.701(d)(2), titled “Sentencing Guidelines,” the statute currently defines “conviction” as a determination of guilt resulting from a plea or trial, regardless of whether adjudication was withheld. See Fla. R.Crim. P. 3.701(d)(2).

So for some purposes in Florida, the definition of “conviction” or “convicted” expressly includes determinations of guilt for which adjudication was withheld.

For example, § 112.3173, Fla. Stat., prohibits felons from beaching the public trust and expressly includes a determination of guilt when adjudication is withheld in the definition of conviction.

Other examples of a withhold of adjudication counting as a conviction include:

  • in § 775.13(1), Fla. Stat., the term “convicted” is defined to mean a determination of guilt “regardless of whether adjudication is withheld,” for purpose of registering as a felon;
  • in § 775.084, Fla. Stat. , for purposes of sentence enhancement for habitual felony offenders, the statute expressly treats probation or community control without an adjudication of guilt as a prior conviction; and
  • in § 943.0435(1)(b), Fla. Stat., for purpose of sex offender registration, the statute defines “convicted” to include a determination of guilt regardless of whether adjudication is withheld.

The Difference Between Adjudication Withheld vs Nolle Prosequi

People often ask about the difference between an adjudication withheld vs. a nolle prosequi.

For the adjudication withheld, the court does not impose an adjudication of guilt, although the court can still impose probation or other sanctions. Those sanctions might include the payment of a fine or court costs, community service, treatment or classes, or the payment of restitution.

With a nolle prosequi, the prosecutor terminates the case without any sentence being imposed by the court. The nolle prosequi means that the prosecutor caused the charges to be dropped completely.

When adjudication is withheld, you might be eligible to seal the record. With a nolle prosequi, you might be eligible to expunge the record.

To prove that the nolle prosequi occurred, you can request a certified copy of the nolle prosequi on a final disposition form.


Withholding Adjudication for a CDL Driver’s Civil Traffic Citation

Did you know that in civil traffic ticket cases the court can withhold adjudication?

The benefit of a withhold of adjudication for a civil traffic ticket is that the DHSMV will not add any points to the driving record for the offense and the insurance company does not recognize the disposition as a “conviction” that might result in an increase in premiums.

The law changed in 2014 so that a CDL driver is not eligible for a withhold of adjudication.

A memorandum dated January 8, 2014, was sent from Maureen Johnson, Chief, Division of Motor Services, to Law Enforcement Agencies, FACC, and the Clerk of Court, regarding changes to CDL adjudications withhold validation process.

The memo explained that effective January 11, 2014, if an adjudication withheld on a commercial driver license (CDL) driver comes in for the Section 318.14(9) School Election Option or Section 318.14(11) judge ordered adjudication withheld, the DHSMV will send it back to the clerk of court through TCATS as an error.

The reason for this change was because, according to the DHSMV, Florida Statute Section 318.14(9) and 318.14(11) do not allow for adjudication withheld for a CDL driver because it is a direct violation of the Federal Regulation 49 C.F.R. Part 384.226 and 49 C.F.R. Part 383.5.

Furthermore, Section 322.01(11) adopted the 49 C.F.R. Part 383.5 definition of conviction into Florida Statutes with regard to commercial driver licensed individuals in the state.

Section 322.01(11) provides:

(a) “Conviction” means a conviction of an offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid state statutory provisions.

(b) Notwithstanding any other provisions of this chapter, the definition of “conviction” provided in 49 C.F.R. s. 383.5 applies to offenses committed in a commercial motor vehicle or by a person holding a commercial driver license.

Because of federal anti-masking regulations, a CDL holder is not eligible to participate in a DUI diversion program that allows the case to be resolved with a withhold of adjudication on a reckless driving charge.

Read more about the new RIDR DUI diversion program in Hillsborough County, FL, that results in the DUI being dropped to reckless driving with a withhold of adjudication.


Additional Resources

What Everyone Needs to Know about Adjudication Withheld – Visit the Florida Bar Journal, Vol. 82, No. 2, February 2008 to find an article written by George E. Tragos and Peter A. Sartes entitled “Withhold of Adjudication: What Everyone Needs to Know.” Read more about why this judicial election can have far-reaching implications in the criminal arena and civil matters. For example, you can still own a gun if the court withholds adjudication on a felony or domestic violence offense, but not if you were adjudicated guilty. Find out the differences between an adjudication withheld vs nolle prosequi.


This article was last updated on Tuesday, August 25, 2020.

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