Differences Between a Conviction and Withhold

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Florida’s Unique Differences Between Being Found Guilty and Being Convicted

Florida is unique in the area of criminal convictions, in that you can be found guilty but not be convicted. This means a person can be accused of a crime, enter a plea of guilty or no contest, or be found guilty by a judge or jury, and be “sentenced” and still not be convicted.

How is this possible?

Adjudicated Guilty (in Florida) means Convicted

A person found guilty of committing a crime in Florida is convicted of the offense when the disposition of the Court is to adjudicate the defendant “guilty.” This is the Court’s decision. It has nothing to do with how you pled; guilty of no contest.

A Finding of Guilt, by Itself, Does Not Mean “Convicted”

The Court can find you guilty after a jury verdict of “guilty,” or if you enter a plea of “guilty” or “no contest” to a criminal offense. However, being found guilty does not mean you have been convicted. There is an additional step the Court must take to either convict you or not convict you of the offense you were found guilty of committing. This happens when the Court sentences you.

Having the Adjudication “Withheld” means Not Convicted

The court, after finding you guilty, must decide if you will be Adjudicated Guilty or if the Court will grant a withhold of the adjudication of guilt. An adjudication of guilt by the Court means you have been convicted. A “withholding” of the adjudication of guilt means you have not been convicted. This also applies when a jury finds you guilty after a trial.

When the Court withholds the adjudication of guilt it means you are guilty of the offense but not convicted under Florida law. This is very important when it comes to being eligible for an expungement or sealing of a criminal arrest record.

How this Applies to the Expungement and Sealing Process

The main difference between a conviction [adjudicated guilty] and not convicted [withhold of adjudication] in the context of expungements is:

  • Any Florida conviction [adjudication of guilt] for a criminal offense stops you in your tracks; it is an automatic bar to expunging or sealing any Florida arrest record.
  • A withhold of adjudication will not bar you from an expungement or sealing for any other Florida arrest. Additionally, you may qualify to have the withheld adjudication record sealed.
  • You can immediately move to expunge an arrest where the charges were dismissed, dropped, never officially filed upon, or you were acquitted.

It is very important, when charged with a crime, to ensure the adjudication is withheld.

A Few Words on Criminal Case Dispositions

There are only a few possible outcomes (dispositions) that can occur in a criminal case. The court has options depending on the outcome:

  • You’re arrested but the State Attorney’s Office decides to not files charges against you.
    • Court loses jurisdiction.
    • This is called “No Information” or “No Bill.”
  • The charges filed against you are dropped or dismissed.
    • Prosecutor drops charges (nolle prosequi); court loses jurisdiction.
    • Court dismisses charges; state has appellate options.
  • You are acquitted of the charges.
    • State and Court lose jurisdiction.
  • You are found guilty of the offense either through a plea or by trial.
    • Court must impose sentence and either;
      • adjudicate you guilty (convict)
      • withhold the adjudication of guilt (not convict)

⚠ Regardless of any of these outcomes, you have an arrest record.

What to Look For On Your Case Disposition

The words you want to see on your “disposition” of your case are:

  • withhold of adjudication [WH]
  • adjudication withheld [adj/w]
  • Nolle Prosequi/Nol Prossed (State drops case)

Clarke v. United States

Clarke v. United States, 184 So. 3d 1107, (Fla. 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 (who were also confused).

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