UNDERSTANDING THE CONCEPT OF WITHHOLDING OF
ADJUDICATION IN A CRIMINAL CASE
By: Dr. Peter A. Barone Esq.
Most people do not fully
understand what is mean by the concept of ‘withholding of adjudication” in a
criminal case. There are statutes which directly address this issue and some
attorneys are not fully aware of exactly the guidelines are when discussing the
issue of “Withholding of Adjudication” in a criminal case.
When examining the Florida Statutes,
it is demonstrated that Florida judges have a special authority which has been vested
upon them by the legislature to “withhold adjudication” in a criminal matter
pursuant to F.S. §948.01. This particular 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 also addressed 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 due to the affect an adjudication of a conviction can
have on an individual’s profession and ultimately their life.
A good number of Criminal Law practitioners have traditionally viewed a withhold of adjudication as a logical compromise for the amicable resolution of criminal cases which usually result from a plea bargain. 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
A good number of Criminal Law practitioners have traditionally viewed a withhold of adjudication as a logical compromise for the amicable resolution of criminal cases which usually result from a plea bargain. 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
An examination of F.S. §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 to wit plea bargaining.
When dealing with cases
involving charging of misdemeanors, withholds have allowed defendants to escape
collateral consequences such as mandatory driver license revocations for drug
convictions or points associated with traffic infractions which are all very costly
to the defendant. 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 which have a life-long negative affect upon the individual and
their lives; this can also have a negative effect on their families.3
When discussing this specific topic,
it has to be understood that 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. This is
extremely important in today’s society where one single negative issue on an
application can result in the person not even being possibly considered for
needed employment.
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 which has been defended by many of the existing groups against drunk driving.5
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 which has been defended by many of the existing groups against drunk driving.5
When examining the sealing and
expunction statutes they 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
It is important for the practitioner and also anyone charged with a crime to review the statutes involving the “Withholding of Adjudication” so you are knowledgeable regarding what you can and cannot have happen if you enter into a plea bargain.
In 2004, the legislature
promulgated F.S. §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. §921.0026. This statute is in effect for all
noncapital felony offenses committed after October 1, 1998. Under F.S.
§921.0026, the court may consider mitigation to include the terms of a plea
bargain, the defendant’s minor role in the offense, the incapacity of the
defendant to appreciate the criminal nature of his or her conduct; the
defendant’s need and amenability for specialized treatment for a mental
disorder, the need for the payment of restitution, the victim’s role in the
incident; duress of domination over the defendant; the compensation of the
victim prior to the identification of the defendant; the defendant’s
cooperation with the investigation, the unsophisticated manner of the isolated
incident; and the youth of the defendant and the inability to understand the
consequences of his or her actions. Interestingly, the statute specifically
precludes the consideration of the defendant’s intoxication and substance abuse
or addictions.
If both the practitioner and
the individual being charged with a criminal offense review and understand what
the statute says regarding the “Withholding of Adjudication” this allows for
less of a chance of any misunderstandings which may occur during sentencing which
was a result of a plea bargain. It also assists in the person charged with
understanding what they may need to provide the attorney who in turn provides
the judge with that would meet the level of mitigating circumstances so that
the court can fully assess the facts presented and make the determination if it
may be a second degree felony as to whether they feel there is a justification
to provide a written explanation to have deviated from the statute pertaining
to the sentencing and granting of a “Withhold of Adjudication” in the instant
case.
References
1. Fla.
R. Crim. P. 3.670.
2.See Thomas v. State, 356 So. 2d 846, 847 (Fla. 4th D.C.A. 1978), cert. denied, 361 So. 2d 835 (Fla. 1978).
2.See Thomas v. State, 356 So. 2d 846, 847 (Fla. 4th D.C.A. 1978), cert. denied, 361 So. 2d 835 (Fla. 1978).
3. Snyder v. State, 673 So. 2d 9 (Fla. 1996).
4 Brown v. State, 787 So. 2d 136 (Fla. 4th D.C.A. 2001)
5. Fla. Stat. §§316.656, 784.07, and 893.135(3).
6 Fla. Stat. §806.01 (arson); Fla. Stat. §784.021 (aggravated assault); Fla. Stat. §784.045 (aggravated battery); Fla. Stat. §790.001(5) (illegal use of explosives); Fla. Stat. §827 (child abuse); Fla. Stat. §860.16 (hijacking); Fla. Stat. §787 (kidnapping); Fla. Stat. §782 (homicide and manslaughter); Fla. Stat. §§794, 800.04, 827.071, 787.025, 796.03, 825.1025, 847 (sexual offenses); Fla. Stat. §817.034 (communications fraud); Fla. Stat. §839 (offenses by public officers or employees); Fla. Stat. §812 (robbery and ca-jacking); Fla. Stat. §810.02 (burglary of a dwelling); Fla. Stat. §784 (stalking).
