Withholding Adjudication

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  • Generally

In certain circumstances, the State Attorney's Office, or the judge, may agree to withhold of adjudication of guilt as part of a negotiated plea. When adjudication is withheld, there is no court finding of guilt; the person is sentenced without a "conviction". Withholding of adjudication can be of tremendous benefit to an accused person, particularly in a felony case, because that person is deemed to not have a criminal conviction on his or her record. A felony conviction can be life altering and in situations where the filing of a No-information is not possible, and PTI is not an option, this is presents another potential solution to avoiding many of the devastating consequences that the accused would otherwise be subject to.

  • Applicable Florida Statute

You should be aware that in recent years, the Florida legislature has imposed certain limitations on the court's authority to withhold adjudication in felony cases. Florida statutes § 775.08435 provides as follows:

(1) Notwithstanding the provisions of s. 948.01, the court may not withhold adjudication of guilt upon the defendant for:

(a) any capital, life, or first degree felony offense;

(b) a second degree felony offense unless: 1. the state attorney requests in writing that adjudication be withheld, or 2. the court makes written findings that the withholding of adjudication is reasonably justified based on the circumstances or factors in accordance with those set forth in Fla. Stat. § 921.0026. Notwithstanding any other provision of this section, no adjudication of guilt shall be withheld for a second degree felony offense if the defendant has a prior withholding of adjudication for a felony that did not arise from the same transaction as the current felony offense.

(c) a third degree felony offense, if the defendant has a prior withholding of adjudication of guilt for a felony offense that did not arise from the same transaction as the current felony offense unless: 1. the state attorney agrees in writing that adjudication of guilt be withheld, or 2. the court makes written findings that the withhold of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in Fla. Stat. § 921.0026. Notwithstanding any provision of this section, no adjudication of guilt shall be withheld for a third degree felony offense if the defendant has two or more prior withholdings of adjudication from a felony that did not arise from the same transaction as the current felony offense.

(2) This section does not apply to any adjudication or withholding of adjudication under chapter 985.

(3) The withholding of adjudication in violation of this section is subject to appellate review under chapter 924.

  • Additional Information on Withholding Adjudication

Simply put, there is no withhold available for a capital, life, or first degree felony. For second degree felony, the court may withhold under certain circumstances, as long as the person has no prior felony withholds. For a third degree felony, the court may withhold adjudication of guilt if the person has no prior felony withholds. If there is one prior felony withhold, the court may withhold in the pending case, under certain circumstances. If the person two more prior withholds, the court may not withhold on the pending third degree felony. Should the court do so regardless, the state attorney's office may elect to file an appeal. The same statutory limitations don't apply to misdemeanor cases (with some narrow exceptions: Florida law does not permit, for example, withholding adjudication in DUI cases).

A withhold of adjudication is usually imposed as part of a sentence involving probation with certain specified conditions, the nature of which will depend on the underlying charge. Once completed successfully, probation is terminated without a finding of guilt or order of conviction being entered. In felony situations, if the person violates the terms and conditions of probation, the judge has the authority to retroactively adjudicate the person guilty (essentially taking away the withhold) and impose whatever sentence could have been imposed at the time the plea was entered.

Withholding adjudication can also avoid certain collateral consequences, such as the suspension of a person's driver's license in a drug case. In other instances, however, withholding adjudication will not avoid the associated collateral consequences. For example, in sexually motivated felony offenses, the withholding of adjudication will not preclude the accused person from having to register as a sex offender. Also, for certain types of crimes, a withhold will not prevent a non-United States citizen from being subjected to deportation proceedings, when such proceedings would otherwise have resulted (that is, where an adjudication of guilt was entered).

Depending on the nature of the underlying charge, a withhold of adjudication may also allow the person to seal his or her criminal arrest record once probation and all associated conditions have been completed successfully. In Florida, certain offenses cannot be sealed, even where adjudication of guilt is withheld, so be sure to discuss this with your attorney well before the case is resolved. Once the plea has been entered, and sentence has been imposed, a "do-over" is highly unlikely. For more information on this, see the Sealing and Expunging section of our website.

You should also be aware that many Pinellas and Hillsborough county prosecutors, and judges, will require a guilty plea in exchange for the withhold (as opposed to a nolo contendre plea). While the guilty plea does not affect what a withhold accomplishes (no conviction), it is worth bearing in mind nonetheless. An experienced St. Petersburg, Clearwater, or Tampa area criminal defense lawyer can explain in greater detail the differences between the pleas of not guilty, guilty, and nolo contendre, and the legal effect of each.

  • The Bottom Line

While the withholding of adjudication in a criminal case can be of tremendous benefit, there are a number of limitations that you absolutely must be aware of. Hopefully, this section has given you at least some sense of that. If you have been arrested for a criminal offense in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City or Bradenton, contact The Kilfin Law Firm, P.C. to discuss your case. A withhold of adjudication may be a viable option. The initial consultation is free and evening and weekend appointments are available.