What is "Withheld Adjudication" in Florida?
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What is Withheld Adjudication in Florida?
In Florida, a withheld adjudication means that the court has not fully convicted a person of a crime. For a felony charge, this is a big benefit because the person can avoid the label of "convicted felon." Receiving a withheld adjudication has the benefit of avoiding a criminal conviction. However, there are limits on who can receive a withheld adjudication. A withheld adjudication can also be converted to an adjudication if the defendant violates probation.
When a Florida judge withholds adjudication, the court is holding off on its decision to "adjudge the defendant to be guilty." Fla. Stat. 948.01(2). In other words, the judge withholds the official finding of guilt or criminal conviction.
Withheld adjudication is at the discretion of the judge. It is for people who are not likely to violate the law again, and where "justice and the welfare of society" will be served by withholding adjudication. Fla. Stat. 948.01(2).
The rules for withheld adjudication in Florida are different for misdemeanors and felonies.
Probation is Not Required for Misdemeanor Withheld Adjudication
Withheld adjudication is possible for misdemeanors in Florida (other than for DUI) without probation.
Probation is Required for Felony Withholds of Adjudication
For a felony, the court must place a person on probation in order to receive a withheld adjudication in Florida. Fla. Stat Section 948.01(2). On probation, the person is supervised by a probation officer for a period of time to allow them an opportunity to complete a term of probation with certain conditions.
If the probationer completes the term successfully, they maintain their withheld adjudication and avoid becoming a convicted felon.
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How Long Does Felony Probation Last in Florida?
There is no set minimum amount of time a person has to be on probation for most criminal charges in Florida. The typical probation lengths vary based on the criminal charge. But they also might vary based on the Florida county in which the case is prosecuted. Probation can last from as little as 6 or even 3 months, to decades.
In Palm Beach County, for a felony drug possession offense, a probation sentence may be offered for a person who has never had such a criminal charge before. An experienced criminal defense lawyer in Palm Beach ,Florida can often negotiate a better resolution than probation for a first-time offender. But typical probation offers for such cases in Palm Beach County are anywhere from 12 months to 30 months, sometimes more.
Negotiating the lowest probation term for our clients is a high priority.
Is it Possible to Avoid Probation and Get Withheld Adjudication on a Felony?
No, Florida law prohibits a defendant receiving a withheld adjudication for a felony without having a probation term imposed. Fla. Stat Section 948.01(2).
In practice, jail could be the sole probation condition, with probation terminating upon release from custody. I have seen this type of agreed sentence accepted by judges in Palm Beach County, Florida, but some judges decline to approve them.
This is not the law's preference in Florida because probation affords the opportunity to prove a person can be law-abiding, and thus deserving of a withheld adjudication. But under the above circumstances, the person's only opportunity to prove their rehabilitated or law-abiding nature on probation will be in the jail setting. If probation continues after jail release, this gives everyone a chance to observe the person back in the community, to make sure they do well.
A Person Must Register as a Felon, Even with a Withheld Adjudication
When a person pleads guilty to a felony in Florida, they are legally required to register as a felon--even if the adjudication is withheld. This is not commonly known, even by lawyers sometimes, because it is never mentioned in court.
No one is legally required to tell a person about this registration requirement before they enter their plea. Cella v. State, 831 So. 2d 716 (Fla. 5th DCA 2002). This is because it is considered a "collateral" rather than a "direct" consequence of a plea. Since no one ever mentions this requirement in court, it is a surprise to many people who go on felony probation in Florida.
Florida law requires a person to register as a felon, even if they had adjudication withheld, within 48 hours of taking their plea. Fla. Stat. Section 775.13. This only has to be done one time for basic felony charges, to the best of my understanding.
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No Withheld Adjudication Permitted for Certain Crimes
There are several types of crimes for which a withheld adjudication is an illegal sentence. For the most serious of felonies--capital, life, and first degree felonies--adjudication cannot legally be withheld.
If probation is appropriate for a person charged with one of these felonies, the prosecutor will sometimes reduce the charge to a lower level felony in order to allow and withheld adjudication. However, for these very serious types of crimes, adjudication is almost never withheld, even when the charge is reduced and probation is offered.
Lower-level felony offenses also have limits on withheld adjudication. Second degree felonies are not supposed to have withheld adjudication, unless the prosecutor requests a withhold from the court in writing; or the judge can give a withheld adjudication, but only if the reasons are explained in writing.
Most third degree felonies can have a withheld adjudication, but domestic violence felonies legally cannot, though the same exceptions can be made. Fla. Stat. 775.08435(1)(c).
Other types of crimes cannot be given withheld adjudications in Florida, such as battery on a law enforcement officer (Fla. Stat. 784.07(3)(b)); fleeing and eluding (Fla. Stat. 316.1935(6)) ; driving under the influence (even the misdemeanor of DUI); drug trafficking (Fla. Stat. 893.135); and assault or battery on a person over age 65 (Fla. Stat. 784.08(3)).
A Person Usually Will Not Receive Withheld Adjudication More Than Once
There are exceptions, but a person will usually receive a withheld adjudication only once in Florida.
Some exceptions to this are (1) If several cases are handled at one time, withheld adjudication might be permitted for all cases that are closed together; (2) a prosecutor can agree to additional withheld adjudications as part of a plea bargain, or by asking the court in writing to impose another withheld adjudication for the defendant; and (3) a judge can grant subsequent withheld adjudications for a defendant if reasons for doing so are stated in writing.
Florida law has a maximum of one prior withheld adjudication for third degree felonies under Fla. Stat. 775.08435(1). In other words, two total times is permitted.
For Immigration Purposes, a Withheld Adjudication Counts as a Conviction
In immigration court, a withheld adjudication does not avoid deportation consequences for convictions that render a person deportable. Withheld adjudications do not help at all in immigration court.
Other States Might Not Recognize a Withheld Adjudication
"Withheld adjudication" might not be honored in other states, since many other states do not have anything similar. Another state might treat a withheld adjudication in Florida as a full felony conviction.
Withheld Adjudication Can Be Taken Away If Probation is Violated
If probation is violated, a person will sometimes lose their withheld adjudication. They may be able to maintain the withhold by being reinstated on probation for another chance to complete probation successfully.
I have often been able to negotiate a continued withheld adjudication for my clients who violate probation. However, if a person is arrested for a new felony offense while on probation in Florida, they often lose their withheld adjudication and become a convicted felon, in addition to other consequences like prison or jail time. However, there are defenses available to those accused of violating their probation.
Consult with an Experienced Felony Defense Lawyer in Palm Beach County, Florida
Having a strong Palm Beach County criminal defense lawyer as your advocate in the courtroom for a violation of probation is of the utmost importance. Contact the experienced criminal defense lawyers at Fore and Pribble PLLC: Book a free consultation online, or call, or text us 24/7.