Withhold of adjudication: what everyone needs to know.

• Author: Tragos, George E.
• Position: Florida

For the benefit of those of you who haven't thought about criminal law since law school, Florida judges have a special authority vested upon them to "withhold adjudication" in a criminal matter pursuant to F.S. [section]948.01. The statute provides the court with the ability to withhold adjudication after the imposition of a probation sentence without imposing upon the defendant a conviction and the collateral consequences that accompany a conviction. (1) This judicial election can have far-reaching implications not only in the criminal arena, but also in civil matters.

Many of us who regularly practice criminal law have traditionally viewed a withhold of adjudication as a logical compromise for the amicable resolution of criminal cases. In those cases, the defendant consents to the payment of fines and a term of probation in exchange for the state's acquiescence of a withhold of adjudication. Once the term of probation is successfully completed, the court is divested of jurisdiction and there is no adjudication of guilt. (2) F.S. [section]948.04 (2) provides that upon the termination of the period of probation, the probationer shall be released from probation and cannot be sentenced for the offense which probation was allowed. In these cases, withholds of adjudication have promoted judicial economy and leniency for uncharacteristic behavior by removing the conviction from the adjudicatory process. In the case of misdemeanors, withholds have allowed defendants to escape collateral consequences such as mandatory driver license revocations revocations for drug convictions or points associated with traffic infractions. In the case of qualifying felonies, defendants escape the forfeiture of civil rights such as the right to vote, hold public office, and serve on a jury. (3)

The effect of a withhold of adjudication has also had far reaching effect in practical application. For example, a person who has had the benefit of a withhold of adjudication could traditionally deny having a conviction, even when subject to deposition or while testifying in court. (4) In addition, defendants could safely check the "no" box on job applications when asked if they had ever been convicted of a criminal offense.

The benefit of the withhold has been the focus of attack in recent times. Specifically, limiting language has been written into a number of statutes that voids the advantage of the withhold provision. The most dramatic is the language in the DUI statute which expressly prohibits the court from withholding adjudication. 5 In addition, the sealing and expunction statutes also preclude the removal from the public record of a number of offenses regardless of the withholding of adjudication. The most notable offenses are those that involve acts of domestic violence. Other disqualifying charges include arson, aggravated assault and battery, illegal use of explosives, child and elderly abuse, hijacking and car jacking, kidnaping, homicide and manslaughter, sexual offenses, communications fraud, offenses by public officers or employees, robbery, burglary of a dwelling, stalking, and attempts or conspiracies to commit the underlying offenses. (6)

In 2004, the legislature promulgated F.S. [section]775.08435, (7) which precludes courts from applying withholds in capital, life, or first degree felonies and limits the application of withholds for second degree felonies by requiring either a written motion from the state attorney or express judicial findings made pursuant to F.S. [section]921.0026. This statute is in effect for all noncapital felony...