Adjudication Withheld Is the Same as a Conviction

[Keter Pardes]

A prosecutor told me that there's a Florida statute that states that
Adjudication Withheld is the same as a conviction. He couldn't tell me
however which specific statute it was. I searched at
http://www.leg.state.fl.us/Welcome/index.cfm and can't find anything like
that. How could this be? If a judge withholds judgment how can it be
considered a conviction? Anyone know the statute he is refering to?

--
All the best,

Keter Pardes

[Theodore A. Kaldis]

Keter Pardes wrote:

A prosecutor told me that there's a Florida statute that states that Adjudication Withheld is the same as a conviction. [...]

Probably because what is being withheld is the imposition of a penalty. If
you are acquitted, what's the point of withholding adjudication?
--
Theodore A. Kaldis
kaldis@worldnet.att.net

[Travis Jordan]

Keter Pardes wrote:

A prosecutor told me that there's a Florida statute that states that Adjudication Withheld is the same as a conviction. He couldn't tell me however which specific statute it was. I searched at http://www.leg.state.fl.us/Welcome/index.cfm and can't find anything like that. How could this be? If a judge withholds judgment how can it be considered a conviction? Anyone know the statute he is refering to?

921.0011 Definitions.--As used in this chapter, the term:

(2) "Conviction" means a determination of guilt that is the result of a
plea or a trial, regardless of whether adjudication is withheld.

http://www.leg.state.fl.us/statutes/...21/Sec0011.HTM

On Wed, 11 Jan 2006, "Travis Jordan" <no.one@no.net> wrote:

Keter Pardes wrote:

For _some_ (and, hence, not all) purposes, depending on the
facts/context of the underlying prosecution and in what later
context/proceeding the, "In Fla., is an 'adjudication withheld' the
same as a 'conviction'?" question later arises.

He couldn't tell me however which specific statute it was. I searched at http://www.leg.state.fl.us/Welcome/index.cfm and can't find anything like that. How could this be? If a judge withholds judgment how can it be considered a conviction? Anyone know the statute he is refering to? 921.0011 Definitions.--As used in this chapter, the term: (2) "Conviction" means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.http://www.leg.state.fl.us/statutes/...21/Sec0011.HTM

That is so but misleading if the cited provision is too glibly read
because "determination of guilt" and "ajudication" are terms of art
that need to be addressed in terms of what the plea was that was
accepted ("guilty"? "nolo contendere?") and what (if any) adjudication
the trial court then made. IOW, under Fla. law, whereas an
adjudication of guilt following a "no contest" plea qualifies as a
"conviction" under the above definition (e.g., Raydo v. State, 696
So.2d 1225 [1997]), a "no contesst" plea followed by a withheld
adjudication is deemed not a "conviction" at least for
computation-of-sentence (in a later prosecution) purposes (e.g.,
[Garron v. State, 528 So.2d 353 [1988]). Correlatively, therefore, a
"no contest" plea with an adjudication of guilt withhold followed by
probation (if successfully completed), without more, is deemed not to
be a "determinatio of guilt" for most later purposes. E.g., E.g.,
Negron v. State, 799 So.2d 1126(2001) citing, Lawrence v. State, 785
So. 2d 728, 730 (2001).

[Keter Pardes]

On 11-Jan-2006, nospam@isp.com wrote:

921.0011 Definitions.--As used in this chapter, the term: (2) "Conviction" means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.

That is so but misleading if the cited provision is too glibly read because "determination of guilt" and "ajudication" are terms of art that need to be addressed in terms of what the plea was that was accepted ("guilty"? "nolo contendere?") and what (if any) adjudication the trial court then made. IOW, under Fla. law, whereas an adjudication of guilt following a "no contest" plea qualifies as a "conviction" under the above definition (e.g., Raydo v. State, 696 So.2d 1225 [1997]), a "no contesst" plea followed by a withheld adjudication is deemed not a "conviction" at least for computation-of-sentence (in a later prosecution) purposes (e.g., [Garron v. State, 528 So.2d 353 [1988]). Correlatively, therefore, a "no contest" plea with an adjudication of guilt withhold followed by probation (if successfully completed), without more, is deemed not to be a "determinatio of guilt" for most later purposes. E.g., E.g., Negron v. State, 799 So.2d 1126(2001) citing, Lawrence v. State, 785 So. 2d 728, 730 (2001).

So in other words if one pleads guilty with adjudication withheld it is
"defined" as a conviction to calculate "sentence points." That law is
speaking only in terms of sentence points ONLY. Voting rights, handgun
rights, and the like remain intact. Correct?

BTW, I notice that this law was repealed. Am I reading it correctly. See
below.

1Note.--
A. Section 1, ch. 97-194, provides that "[s]ections 921.0001, 921.001,
921.0011, 921.0012, 921.0013, 921.0014, 921.0015, 921.0016, and 921.005,
Florida Statutes, as amended by this act, are repealed effective October 1,
1998, except that those sections shall remain in effect with respect to any
crime committed before October 1, 1998."


--
All the best,

Keter Pardes

"Keter Pardes" <anointedears@yahoo.com> wrote:

[In Fla.,] if one pleads guilty with adjudication withheld it is "defined" as a conviction to calculate "sentence points." That law is speaking only in terms of sentence points ONLY.

If the statute were narrowly read, that would be arguably correct; but
the definition of "conviction" also appears more generally in Fla.
Rule of Crim. Proc. 3.701. In any case - or, anyway, in your case -
whether the statute and rule ought be given a narrow application is
apparently moot, since you appear to acknowledge that you were
"convicted" of a crime even if those formal definitions did not apply
and, at that, it was a conviction that was not expunged and yet the
purport of your answers in this connection on your license application
were to the effect that it had been expunged.

BTW, I notice that this law was repealed. * * * 1 Note.-- A. Section 1, ch. 97-194, provides that "[s]ections 921.0001, 921.001, 921.0011, 921.0012, 921.0013, 921.0014, 921.0015, 921.0016, and 921.005, Florida Statutes, as amended by this act, are repealed effective October 1, 1998, except that those sections shall remain in effect with respect to any crime committed before October 1, 1998." Am I reading it correctly?

No, for several reasons. First, you appeared to suggest that the
offense at issue and your plea in your case occurred before Oct. 1,
1998. Second, even if not, the repealer to which you refer was an
element not of outright repeal but of recodifiction. Third, the
provision actually applicable to your question (according to you) is
Sect. 921.0021(2), not apparent covered by the above repealer in any
event, which provides - as in effect in and since 2002 - that a
conviction for Fla. state law purposes "means a determination of guilt
resulting from plea or trial, regardless of whether adjudication was
withheld or whether imposition of sentence was suspended" (re. which,
see also the above cited rule of criminal procedure. See, too, the
March 2005 Fla. State Supreme Court decision in Montgomery v. State
which discusses these and related issues.

They are prosecuting me only for concealment, which the prosecutor said he feels I didn't intend to do.

This elaboration of your first newsgroup posting in which you said you
were being charged with variations of (actual) fraud doesn't make good
sense unless (as you have not yet done) you are trying to say that the
other charges have been dismissed and, if not, you answer for yourself
why, if the prosecutor really does "feel" as you say, he nevertheless
continues to prosecute you on that ground.

Which leaves the second count which states that I violated the rule 61J2-2.027(2) that I am obligated to "make it possible to immediately begin the inquiry as to whether the applicant is honest, truthful, trustworthy, of good character..." That's the count that the prosecutor feels he can win on.

You appear to acknowledge that a fair interpretation of your license
application is that you therein made at least one (and, perhaps, two)
factual representations that were materially incorrect even if you
would contend not motivated by a deliberate intent to defraud (or to
conceal) - namely,

First, that though you effectively (by signing your application)
acknowledged your understanding of and acquiescence in an explicit
instruction that, if you availed yourself of the option to answer "No"
to a question whether you had ever pled nolo contendere for a crime,
as the application said you would be entitled to do if it was true
that the court had accepted such a plea and if a resulting conviction
had been expunged, you were "responsible for verifying" that, in fact,
there had been such an expungement as a pre-condition to be entitled
to give and rely on such an answer but that, despite this, you did not
"verify" the expungement in the active sense of that term and, indeed,
you could not have done because, though you were convicted of a crime
by way of such a plea, that conviction had not been expunged when you
made and submitted your application; and

Second, though you have yet to report in your newsgroup postings
whether in addition to the application provisions you have quoted or
summarized re. your conditional entitlement to answer "No" to the said
"convicted,etc.?" question there was some sort of catch-all statement
of verification - e.g., a statement perhaps at the end of the
application above your signature to the effect that, by you signing
and submitting the application, you were attesting that the statements
you were making there therein were true.

And if there were such a catch-all "verification" statement, it could
be important to know (especially in light of the arguments you imply
you propose to make about the effect of what your lawyer said to you)
how it was worded in terms of whether there was some sort of "of my
[your] own personal knowledge" or "upon information and belief"
qualifiers and, even if there was not an "on information and belief"
qualifier in the form's pre-printed version, why you did not insert
words to that effect if (as you say) you were relying not on what you
(personally/directly) had investigated and confirmed and, instead, on
what you say a lawyer told you (i.e., on [apparently, you seem to say,
materially incorrect] "information" [i.e., actually in the
circumstances, "misinformation"] that you "believed" to be true) and
not stating a fact you knew to be true.

Isn't there case law that supports that being that I relied on the word of an attorney I fulfilled my legal obligation? Or can it be argued that it is not prudent to rely on the advice or statement of your attorney?

If it the word is not further explained in the application or
accompanying instructions and if you had not forgot to report in your
newsgroup postings what those instructions are, it would be
understandable that you express puzzlement about what "verifying"
means as the application used that word ("responsible for verifying"
etc.) since (as you've also noted at least in part) "verifying" can
have different and, depending on context, only partly related
meanings, which include (i) the act of comparing whether and, when
done, that This document or widget is an exact replica of That
document or widget or, in your case, of doing what was reasonably
required in the circumstances to have confirmed to your
direct/personal knowledge that another's prior act (here, expungement
of your conviction by a court that had convicted you of a crime) had,
in fact, occurred and (ii) the act of attesting orally or by signing a
document that some statement is true or is false (including, if
relevant, whether the statement is being made "on information and
belief" (e.g., "I hereby verify that . . . .").

Your newsgroup postings appear to address only the first of these
alternatives although, if the application did contain a catch-all
"verification" of the truth of statements made therein of the sort
about which I speculate, then both would apply and yet (and as noted)
you have not yet reported what if any qualifications to your statement
of verification you gave.

Your "relied on the word of an attorney" formulation therefore paints
with too broad a brush: If, on the one hand, it is probably safe to
predict that it would not be too difficult to find Fla. state court or
Fla. federal court decisions to the effect that provably good faith
reliance on the advice of counsel can negate the "intent" element of a
criminal or civil "fraud" or like claim (because "fraud" requires an
actual intent to deceive); but a statement complained of because it is
false in fact without regard to the intent of the maker of that
statement is, nonetheless, a factually incorrect statement; although I
don't recall whether you've so far reported that whatever is the
statutory prohibition against "concealment" the prosecutor invokes as
a basis for prosecution makes proof of intent do deceive a necessary
element of the offense (presumably, here, of "concealment") .

Note, however, you also do not say how the prosecutor proposes to
prove that, even if you made the two sorts of false statements
referred to above, your so doing "ma[d]e it [not] possible [sic]
immediately begin the inquiry . . . whether the applicant is honest,
truthful, trustworthy, of good character..." although this portion of
what appears to be a quotation by you of a statute or rule arguably
(on its face) is (standing alone) absurd in this respect (although
maybe there is more to the rule that is relevant than you've so far
quoted?).

You do not say whether the licensing authority or prosecutor claims to
have done (let alone whether whatever you said on your application
made it necessary for either of them to have done) anything more than
themselves to verify whether you had been convicted of a crime by,
f'r'instance, (simply?) typing your name and address (and, maybe,
social security number, which, however, you presumably truthfully
supplied) into the NCIS or like database and (arguably: importantly)
relatedly whether they make that sort of database query with respect
to every applicant for a license of the sort you were seeking; but if
(as is likely?) they did not do more than that, then it remains to be
explained how the falsity (standing alone of your representation that
your conviction of a crime had been expunged would even meaningfully
impede (let alone not "make it possible") "immediately [to] begin the
inquiry . . . whether [you as] applicant [were]honest, truthful,
trustworthy, of good character..." (although, granted, the result of
such an inquiry could of course - and, here, understandably did -
raise a question about the _substance_ of whether you were honest,
truthful, etc.).

(You aren't sufficiently clear whether the statutes you've cited makes
it a penal violation for you to have made it "harder" by reason of
your factually incorrect statements than it would have been if you had
answered factually correctly whether you are a "person of good moral
character" or are "trustworthy" or the like - your quotation above
being limited to what the relevant authorities apparently claim they
could not "immediately begin [sic]" to do - although it would seem
that [though you have a partly credible explanation] the falsity of
the statements in question arguably at least prima facie raise
questions about your trustworthiness and honesty [not to dwell on:
pratical good sense].)

A related issue that appears to pervade but which you appear not fully
to have addressed in all your postings if you choose not to
compromise/settle and instead actually to go to trial is how you
propose to prove what you say (for all purposes of these comments, I
believe: truthfully) what your lawyer told you. Certainly, questions
I have not yet seen you answer include: Will appear and so testify
(and, if he does, how will he explain the misinformation he gave you)
and, if he does not appear personally (or at a pretrial deposition),
would an affidavit by him addressed to this issue be probably excluded
as hearsay?

It's my contention that if the records were indeed expunged I had no obligation according to the wording on the application which I verified with my attorney.

Two basic infirmities with this conditional/contrafactual contention
are, first, that you appeared to say in all your postings that
addressed this issue that (though you believed otherwise) you were
convicted of a crime covered by the questions in the license
application and that (though in this respect, too, you believed
otherwise) that conviction was not expunged (although the purport of
your answer in this connection was a representation by you that it had
been expunged), so that your, "if . . . indeed, etc." formulation
appears itself to be unwarranted because you have confirmed that that
"if . . . indeed, etc." is not true, and, second, that your "verified
with [your] attorney" locution begs the question what "verified" means
(though, as noted, neither I [nor, I dare guess, anyone else who has
read your postings] will doubt that you did ask your attorney in the
earlier criminal prosecution whether your conviction had been
expunged, that he replied that it had been, and that you believed in
good faith [if perhaps much too carelessly] that what he said in this
connection was correct).

Even so, another way you might have "verified with [your] attorney"
whether your conviction was expunged would have been to have asked him
to supply you with at least a photocopy (even if not a
court/clerk-supplied governmentally-"certified" or "authenticated"
copy) and yet you chose not to do this; and while this is not a choice
and an omission that necessarily contradicts that you may have
believed what your lawyer said to have been correct, it is not an act
and an omission that explains why you believed that relying on what
your lawyer said, without more, constitutes "verifying" that the
statements he made were correct.

One thing for sure. I didn't intend to make it harder for them to investigate me. It doesn't take a genius to figure out when I'm asked to fill out a fingerprint card that they ARE going to do a background check. Not to mention a fee is collected to do the check.

Exactly (and, as noted, I believe your newsgroup posted statements to
the effect that you did not intend to mislead or otherwise make it
harder for the authorities to investigate and themselves to verify the
correctness of what you had represented to be the fact.

But based on what my attorney told me I expected nothing to be found.

Maybe you've supplied statutory references in your postings that
address this statement which I haven't yet seen or read carefully
enough; and, maybe, it is not a disqualifying act for a license of the
sort to which you refer for an applicant to have expectations of this
sort without a practically sufficient factual basis therefor; but one
might wonder nonetheless whether what you say above you "expected" is
sensible if, as you appear relatedly to have suggested (and even if
you had not been asked in this connection) the sole "verifying" you
did about whether you had been convicted of a crime and, if so,
whether that conviction had been expunged was one oral query to a
lawyer who represented you years ago answered only orally (i.e.,
without your having asked for much less having been furnished with
documentation of that asserted fact).

Again, this is not to say that I believe that you had any
self-articulated intent falsely to state facts let alone that you have
committed a crime.

To the contrary (and as also noted), I suspect that, if push comes to
shove in this respect (and if you get your "ducks in a row" re. how to
prove what your lawyer said), proof of what you lawyer said very
probably would undermine (actual) fraud and related intent-to-mislead
claims (even if not claims derived primarily from the false-in-fact
nature [without regard to intent] of what you said or if [without
regard to intent] such falsity resulted in some other related wrong -
e.g., causing licensing authorities to undertake the expense and
related burden to investigate whether a person who stated, contrary to
fact, that he had not been convicted of a crime or who said [even if
by just necessary implication and, in that manner, in effect] that a
criminal conviction had been expunged is a person with sufficient
"good moral character" to be entitled to a license if such "good . . .
character" is a statutorily- or rule prescribed requirement to license
holding in the circumstances.)

I guess that leads me to needing to know the definition of "mitigating circumstances." Are there mitigating circumstances that could lead to a dismissal?

What do the applicable statutes/rules say about this subject in terms
both of a substantive defense (or not) and, if convicted, of the
nature/extent of penalty to be imposed (or perhaps imposed but
conditionally "suspended").

Your postings suggest a number of potential defenses both on the
merits of what you _appear_ to say you're being charged with and also
(relatedly but independently) as against sanction, _but_ I hasten to
underscore that "_appear_" qualification because, at least insofar as
I've read what you've said, you are not sufficiently clear (at least
to me) about what it is (exactly) that you are being charged in what
forum. What arguably is all too clear, however, is that you are very
likely being worse than worse than "penny wise and pound foolish" in
your apparent report that (even if it would be economically burdensome
for you in the short term to do this) you have chosen not to consult a
genuinely well-informed, smart, creative, tough-minded, practical
attorney face-to-face for (VERY) _specific_ what-to-do (and _how_)
advice based on all the relevant documents/facts presently known to
you (even if such consultation does not result in on-going/full-scale
representation, although it probably should).

[southbeachlaw]

A conviction in Florida is really not a well settled manner. In all cases, an adjudication of guilt is a "conviction" you are convicted for that crime in the traditional sense of the word. If convicted for a felony (adjudicated guilty) then, in addition to the sentence there are legal ramifications such as loss of certain licenses (driving license if it's a drug offense), forfeiture of property in some cases, and most importantly loss of right (right to seal/expunge) and loss of civil rights.

A withhold of adjudiction is a conviction in which the court "withholds" adjudication. Though some legal privileges may be lost (right to drive if you tak a plea in a drug case and they suspend your license for 2 years) you will not lose your civil rights or right to seal/expunge if that type of case is eligible to be sealed or expunged.

In both withhold of adjudication and adjudication of guilt cases, those cases can later be used against you in establishing future punishment or for "scoring" you.

So, it appears that a withhold of adjudication works the same as a conviction for some purposes, but not for other. There are nuances beyone the mere definition in the statue...nuances created by the courts in their application and interpretation of the definition.

Hope this helps.

Nicolas Babinsky, Esq.
Sealmyrecord.com

[Abril]

Originally Posted by southbeachlaw

A withhold of adjudiction is a conviction in which the court "withholds" adjudication. Though some legal privileges may be lost (right to drive if you tak a plea in a drug case and they suspend your license for 2 years) you will not lose your civil rights or right to seal/expunge if that type of case is eligible to be sealed or expunged.

In both withhold of adjudication and adjudication of guilt cases, those cases can later be used against you in establishing future punishment or for "scoring" you.

So, it appears that a withhold of adjudication works the same as a conviction for some purposes, but not for other. There are nuances beyone the mere definition in the statue...nuances created by the courts in their application and interpretation of the definition.

Hope this helps.

Nicolas Babinsky, Esq.
Sealmyrecord.com

Thanks, Nicolas. What about this situation: Nolo contendre, adjudication withheld for petty theft when subject was 19yrs old. 6 years later, no subsequent offenses of any kind. When applying for a job (in another state), should subject say that she was convicted of a crime??

[cyjeff]

This thread is over 2 years old. Odds are, the OP is no longer responding.

You may want to start your own thread to get a better response.

[JJOO]

Hello - I just applied for a job in Florida. There was this statement in the document

======
Have you EVER been convicted of any crime or are there any criminal charges pending against you including: misdemeanors, felonies and/or criminal traffic offenses (i.e., DUI, DWI)? Include instances wherein you were found guilty, or entered a plea of guilty or “nolo contendre” (no contest) and/or your plea resulted in incarceration, probation, pre-trial intervention, pre-trial diversion, or adjudication withheld. [ ] Yes [ ] No
======

I answered No, because I was never convicted but did get summary suspension (for 1st offense) and met all the requirements and conditions of that summary suspension. I think I answered correctly... at least I hope because I'm certainly not trying to hide anything, just trying to answer accurately. It seems like they ask whether the person is convicted, and that by the way ask whether they had any record at all regardless of conviction but that's not really the YES and NO question. Just confused!

Any opinions?