Think You Can't Get Another Withhold? There's an Exception Most People Don't Know About.
Many defendants and even some attorneys believe that Florida Statute § 775.08435 strictly limits when you can receive a withhold of adjudication. If you've had a prior withhold, getting another one seems impossible. But there's a wildcard: Florida's drug offender probation statute (§ 948.20) trumps the withhold limitation statute.
The Two Statutes at Play
Understanding this defense requires knowing two statutes and how they interact:
§ 775.08435 - Withhold Limits
This statute restricts when courts can withhold adjudication based on the current offense level and the number of prior withholds you have. It's the statute that makes people believe they're ineligible.
§ 948.20 - Drug Offender Probation
This statute allows courts to place defendants on drug offender probation when the offense was committed as a result of substance abuse. It specifically permits the court to withhold adjudication.
The Case: State v. Dhaiti (2021)
In State v. Dhaiti, 329 So. 3d 154 (Fla. 4th DCA 2021), Florida's Fourth District Court of Appeal resolved the conflict between these statutes:
Section 948.20, Florida Statutes, which allows a court to withhold adjudication when placing a defendant on drug offender probation, controls over § 775.08435.
The court applied the well-established principle that a specific statute controls over a general statute. Drug offender probation (§ 948.20) is specific to substance abuse cases, while the withhold limitation (§ 775.08435) applies generally to all offenders.
When This Defense Applies
To use this exception, the defendant must:
- Be charged with an offense related to substance abuse. This includes drug possession, but can also include theft, fraud, or other crimes committed to support addiction.
- Qualify for drug offender probation under § 948.20. The offense must have been committed as a result of substance abuse, or the defendant must be someone who could benefit from treatment.
- Be willing to accept drug offender probation conditions. This includes treatment, drug testing, and other conditions the court deems appropriate.
Types of Cases Where This Helps
The substance abuse connection doesn't have to be obvious. Consider these examples:
| Offense Type | Substance Abuse Connection |
|---|---|
| Drug Possession | Direct connection - using controlled substances |
| Retail Theft | Stealing to support addiction or obtain drugs |
| Fraud/Forgery | Financial crimes to fund addiction |
| Burglary | Property crimes while addicted |
| DUI (repeat) | Alcohol use disorder |
| Assault | Committed while intoxicated |
The Defense Argument
Here's how to frame the argument at sentencing:
"Your Honor, while § 775.08435 would normally limit the court's ability to withhold adjudication given my client's prior record, § 948.20 provides an exception. Per State v. Dhaiti, the drug offender probation statute controls over the withhold limitation statute. My client is appropriate for drug offender probation because [explain substance abuse connection], and therefore the court may withhold adjudication."
Why This Matters
A withhold of adjudication means you're not "convicted" of the crime. This affects:
- Employment: You can often truthfully answer "No" to conviction questions
- Professional licensing: Less impact on nursing, teaching, and other licenses
- Record sealing: Withholds are often eligible for sealing; convictions usually aren't
- Immigration: A withhold may avoid certain immigration consequences
- Housing: Landlords may view withholds more favorably than convictions
The Bottom Line
If you've been told you can't get a withhold because of your prior record, that may not be the complete picture. Drug offender probation under § 948.20 creates an exception that even some attorneys don't know about.
The key is identifying the connection between the offense and substance abuse, then presenting the Dhaiti argument to the court. Not every case will qualify, but many do - especially in an era where courts are increasingly focused on treatment over incarceration.
Think You're Ineligible for a Withhold? Let's Check.
If you've been told your prior record prevents a withhold of adjudication, there may be options. Drug offender probation under § 948.20 can change the analysis. Call now for a case evaluation.
Sources
- State v. Dhaiti, 329 So. 3d 154 (Fla. 4th DCA 2021)
- F.S. § 775.08435 - Limitations on Withholding Adjudication
- F.S. § 948.20 - Drug Offender Probation
Related Articles
Prior Convictions Don't Count Against Withhold Eligibility
It's prior withholds, not prior convictions. Justice v. State explains why.
BlogSealing and Expunging Criminal Records in Florida
After a withhold, sealing may be an option. Learn how.
Need Legal Help?
If you're facing criminal charges in Central Florida, an experienced defense attorney can make the difference. Get a free consultation to discuss your case.
Contact Lotter Law at 407-500-7000 for a free consultation.
Jeff Lotter
Criminal Defense Attorney | Former State Trooper
Jeff Lotter is an Orlando criminal defense attorney and former Florida Highway Patrol trooper. He uses his law enforcement background to build stronger defenses for clients facing criminal charges.