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 received a withheld adjudication. A withheld adjudication can also be converted to an adjudication if the defendant violates probation.
Definition of "Withheld Adjudication"
When a Florida judge withholds adjudication, or "adjudged the defendant to be guilty." Fla. Stat. 948.01(2). The judge is basically deciding to "stay" or wait, place the person on probation, and allow them an opportunity to complete a term of probation. If the probationer completes the term successfully, they maintain their withheld adjudication and avoid becoming a convicted felon.
Probation is Required for Felony Withholds of Adjudication
A person must be placed on probation in order to receive a withheld adjudication in Florida. In other words, a defendant cannot be given a withheld adjudication for a felony and have no other sentence imposed. The additional sentence has to be a term of probation or community control (a more intense form of probation). Probation has conditions like paying court costs and fines. Community service hours are
In practice, at least in Palm Beach County, Florida, we can occasionally negotiate a withheld adjudication that places the person probation with a term of jail as the only condition of probation. For example, a person is in jail for a crime, then they plead guilty, go on probation, and the only condition of probation is for them to complete a short jail sentence (say, 90 days, for instance). That way, once they are out of jail, they are also done with probation and they are not a convicted felon. Judges will sometimes not approve such a sentence, so this is not the most common practice. This is because the person's only opportunity to prove their rehabilitated or law-abiding nature on probation will be in the jail setting. Most of the time, even if jail is a condition of probation, the probation term will continue after the person is released from jail. This gives everyone a chance to observe the person back in the community, to make sure they do well.
A Person Must Report 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, Fla. 5th DCA 716 (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. 775.13. This only has to be done one time for basic felony charges, to the best of my understanding.
Withheld Adjudication Cannot be Granted for All 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 everyone involved agrees that probation is appropriate for a person charged with one of these felonies, the charge is usually reduced to a lower felony in order to legally place the defendant on probation. However, for these very serious types of crimes, a withheld adjudication is almost never given, even when the charge is reduced and probation is offered.
Lower 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); 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 set a maximum of one prior withheld adjudication for third degree felonies at end of Fla. Stat. 775.08435(1).
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.
Other States Might Not Recognize a Withheld Adjudication as "Not Convicted"
"Withheld adjudication" might not be honored in other states, since many other states do not have anything similar.
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. If a person is arrested for a new felony offense while on probation in Florida, they usually lose their withheld adjudication and become a convicted felon, in addition to other consequences like prison or jail time. There are defenses available to those accused of violating their probation. Having a strong advocate in the court room for a violation of probation is of the utmost importance.
