Florida Does Not Convict Everyone
Eric J. Dirga, P.A., Office Orlando
Over the many years I have been sealing and expunging criminal records I have always had to try and explain the difference between Florida’s use of withholding the adjudication of guilt and convicting a person of a crime. Hopefully, this page will do a better job than my brief explanations that occur over the phone or in emails.
A Florida Conviction Is …
The confusion that springs up about Florida’s sentencing structure is the fact that you can be
found guilty of committing a criminal act (regardless of whether you pled guilty or were found guilty by a jury) and still not be
convicted of committing that act.
This can be very confusing to people for many different reasons. For purposes of this webpage, I am keeping it in the context of sealing or expunging a criminal record.
When you are arrested you are at the very beginning of the criminal process. Except for certain traffic offenses (criminal acts charged by the issuance of a criminal traffic citation) all criminal offenses must be formally charged by the filing of an Information or indictment (these are formal charging documents filed by the State Attorney’s Office).
An Information is the formal charging document. When the State Attorney receives the police report explaining why you have been arrested (written by the police) they review it and determine if they will file formal charges against you. This can take several weeks.
The State Attorney’s Options
Upon receipt of the police report the State Attorney has several options. They can file:
- No Information Notice: Also called a No Bill, this means they are not filing formal charges. For most cases this means the case has been dropped. It does not mean the arrest record disappears.
- An Information: This is a formal charging document and it means they are going to pursue the charges listed against you.
- An Indictment: This is also a formal charge and requires the convening of a grand jury.
If You Are Formally Charged With A Criminal Offense
If you are charged and you enter a plea of guilty or no contest then you will typically be found guilty by the court. However, being found guilty does not mean you have been convicted.
The court, immediately after finding you guilty, must then decide if you will be Adjudicated Guilty or if the court will Withhold the adjudication of guilt. This also applies when a jury finds you guilty after a trial.
The Withholding of Guilt …
The court’s decision of either adjudicating you guilty or withholding the adjudication of guilt will determine if you are convicted. If the court adjudicates you guilty you have been convicted of the offense. If the court withholds the adjudication of guilt the court has not convicted you.
Florida law has this alternative to sentencing that allows a person to escape the penalty of a conviction for many reasons too expansive to list here. The one thing to remember is that in the context of sealing or expunging your record you can never have been adjudicated guilty (convicted) of any criminal offense. If you have ever been convicted you are not eligible to seal or expunge anything.
If the arrest record you want to get rid of had the adjudication of guilt withheld then that offense can be sealed (providing you meet the other qualifications (i.e., you have (1) never been convicted of another offense and (2) you have never sealed or expunged a prior Florida arrest record).
Clarke v. United States, 41 Fla. L. Weekly S41a, (Fla. February 11, 2016): This case gives the best explanation of the law about Florida’s ability to find someone guilty but not convict them of a crime. The Florida Supreme Court answered the question posed to them by the Eleventh Circuit Federal Court of Appeal (they were also confused).
Dropped, Dismissed, No Information
If you have been arrested the criminal charges may still go away. The State Attorney can file formal charges against you then decide to drop the case. The court can dismiss the case based on certain legal arguments by a lawyer. The State Attorney can decide to never file formal charges and announce this with the filing of a document called a No Information notice. In these instances you have not been found guilty and you have not been convicted.
If the arrest record you want to get rid of resulted in the case being dropped, dismissed, or not filed on you can expunge that record provided you meet the other qualifications.