As criminal lawyers we try to do the best for our client. This means working out the best possible resolution to the case if we can’t fight it at trial. We often are concerned about the penalties and how they will affect our client’s life. What we often forget, though, is what effect the record will have on their life. Anything other than adjudication withheld causes even the smallest offense to become a life sentence.

When representing defendants in felony cases we often think of an amendment to a misdemeanor as a victory. This is especially true the more serious the felony. Getting it knocked down to a misdemeanor means he or she won’t lose rights, won’t be a convicted felon, and won’t have to deal with a scoresheet for sentencing.

Those are all great achievements however, just because you got the burglary of a dwelling knocked down to a simple trespass doesn’t mean your client is “off the hook.” A plea to a lesser included offense of a misdemeanor from a felony means your client’s arrest history will still reflect a felony unless the resolution is adjudication withheld. Remember, criminal history records start at the arrest. That means regardless of the outcome of the case – your client’s criminal history will start with an arrest for the Burglary of a Dwelling.

An arrest record is just that – a record of arrests. The only way to get rid of a black mark on an arrest record is to either seal the record or expunge it. Yes, your client was only found guilty of a trespass … and if you look far enough down on that record you may find some abbreviation that indicates that your client was only found guilty of the trespass. HOWEVER at the very top it will still say “arrested for Burglary of a Dwelling.” When the average person reads that, they will only see “burglary of a dwelling.”

It is very important to ask for the withhold of adjudication on the Lesser Included Offense [LIO]. This is especially true if this is the first criminal offense for your client. If your client has had previous arrests you need to know if he has ever been adjudicated guilty. If not, he still has the ability to seal or expunge an arrest (including one for a serious felony) so long as the misdemeanor disposition is adjudication withheld.

Judges see lots of defendants everyday. They hear all the bad excuses and lies daily. You need to shake them out of that rut when they are dealing with your client by pointing out why adjudication withheld is appropriate for the lesser included offense. Today the main reason for asking for the withhold is the internet. Without the ability to seal the arrest, the offense your client is pleading to will haunt him or her for life. If that is not the punishment the court wants to impose then the disposition needs to be adjudication withheld.

Prosecutors need to also understand the penalties imposed. If they are willing to amend a felony to a misdemeanor they probably realize your client doesn’t deserve the punishment of a felony. They have to be made to understand that the record is a life sentence unless it can be sealed at a later date. The withhold is a necessary requirement.

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Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.