Criminal Case Resolutions

Withholding the Adjudication of Guilt

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.

The Great News! that the Offer Is To Plea To A Misdemeanor

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 does not mean it won’t sting in the future. 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.

The Hook That Is An Arrest Record

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.”

Get a Withhold on All Amendments to LIO

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 so long as he maintains that condition.

Judges and Prosecutors

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 a withhold is appropriate for the LIO. 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 his or her life. If that is not the punishment the court wants to impose then it needs to be a withhold.
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.
For more information please go to my website. Eric J. Dirga, Attorney, P.O.Box 3591, Orlando, FL 32802-3591  (407) 841-5555

The Haunting Record Of Arrest

Many people believe that if their criminal case was dismissed or they had adjudication withheld they do not have an arrest record. Another common belief is if they did not go to jail they weren’t arrested. These two misconceptions come back to haunt people everyday. The Courts may also be part of the problem. I hear too often from too many different people that they were told they did not have a record because they received a withhold.

I Wasn’t Arrested – Misconception #1

If you ever had to go to court to answer to a criminal charge you were arrested. This can be confusing because most of us believe being arrested means going to jail. This is not true. All criminal cases must start with an arrest. For many minor offenses you may not go to jail. You may simply be given a Notice to Appear [NOA]. A NOA directs you to appear before a court for an arraignment. The date you receive the NOA is your arrest date. The NOA is technically an arrest.

My Case Was Dismissed – Misconception #2

You were arrested (or received a NOA) but my case was dismissed. The prosecutor dumped it and you did not have to do anything. Therefore you have no record.
Well, not so fast. Actually, you do not have any criminal charges proved against you but you still have a date in your life on which you were arrested. That does not go away with the case. You have to remember that once you are arrested a record is being made regarding that arrest. This record follows you through your case and if you do get it dismissed it will say the case was dismissed. It will also start off with the arrest.
The good news is that if you had the charge dropped or dismissed you may be eligible to have that record expunged. If you are eligible you definitely want to have this done.

People See What You Were Arrested For – Not The End Result

When people look at your record the first thing they see is what you were originally arrested for. This is not good because typically law enforcement initially overcharge you. For example, if the police catch you in someone else’s house you will probably be charged with burglary. When the State Attorney gets the case they may only officially charge you with trespass. But when someone searches your arrest record they see Burglary. Why? Because it is an arrest record and you were initially arrested for burglary.

The Judge Withheld The Adjudication Of Guilt – Misconception #3

The judge withheld the adjudication of guilt and you think that means you do not have an arrest record. Go back and read #2 above. An adjudication of guilt is a strange concept. It means the court found you guilty but did not convict you. This can be very confusing especially because this concept is very rare. Florida has it. Most states do not. People in other states will see that you were found guilty and consider you convicted. Good luck trying to explain the “withhold.”
If you had adjudication withheld you still have an arrest record- you were still found guilty – you just weren’t convicted. Better – you may be eligible to have your arrest record sealed. If you qualify you should do this immediately.

Why Does Something That Was Never Proven Punish Me For Life?

Think about this – let’s say you were arrested and the charges are dropped or you were arrested and punished for your bad deeds. Why do you still pay the price because of your record?
The answer is your state and local government are making money selling public records. This includes the record of your arrest. The government is so damn greedy they won’t even wait to see if you actually had the charges proved against you. Add to this the fact that times have seriously changed. We live in an information age where the government simply shakes off disclosures that point out how they spy on all of us (and apparently, we don’t care). We don’t care unless it affects us personally.

Florida Expungement And Sealing Of Criminal Records

Fortunately, Florida has a process to remove an arrest record. It is limited, you have to qualify, and it is a pretty strong law. Take advantage of it. Waiting just means more private companies will have your information.

A Quick Post About Expungements and Sealings: READ

After people are done sealing or expunging a criminal arrest record they are often perplexed why their record keeps showing up on background checks. The answer is always “those are private companies and they are not sent a copy of the order.” Inevitably, my clients want to know how to remove their records from these private background check companies.
The answer use to be that you would have to pay someone to do this. However, I have just found out there is a non-profit law firm out there helping people do this for free.
The Foundation for Continuing Justice (FFCJ) is a privately funded, non-profit law firm dedicated to providing those with a criminal record, the opportunity to reenter and reintegrate into society as productive individuals. The Foundation has two areas of focus. First, providing free legal research to lawmakers looking to reform laws that govern the retention and distribution of criminal records. Second, providing innovative tools to help former offenders.
I am advising all my clients – past, present, and future – to utilize this service and please let me know how it goes. Hopefully, this is the service we have all been looking for.

Thank you,

Eric Dirga