Have Prior Convictions? You May Still Be Eligible for Your First Withhold.
One of the most common misunderstandings in Florida criminal law: many people believe that having prior convictions prevents them from receiving a withhold of adjudication. This is wrong. Florida's withhold limitation statute counts prior withholds, not prior convictions.
The Common Mistake
I hear some version of this regularly:
- "I've been convicted before, so I can't get a withhold."
- "My criminal record prevents adjudication from being withheld."
- "The judge said my prior charges mean no withhold for me."
These statements reflect a fundamental misreading of Florida Statute § 775.08435. The statute doesn't count prior convictions. It counts prior withholds.
The Case: Justice v. State (2020)
In Justice v. State, 313 So. 3d 743 (Fla. 2d DCA 2020), Florida's Second District Court of Appeal made this crystal clear:
"The question of whether the court is prohibited from withholding adjudication hinges on the number of defendant's prior withholdings of adjudication, not the defendant's prior charges or convictions."
Translation: A defendant with prior convictions but no prior withholds is treated as having a "clean slate" for withhold purposes under § 775.08435.
The Counterintuitive Reality
This leads to what seems like a strange result:
| Defendant A | Defendant B |
|---|---|
| 0 prior convictions | 3 prior felony convictions |
| 2 prior withholds | 0 prior withholds |
| Limited by § 775.08435 | NOT limited by § 775.08435 |
Defendant B, despite having a worse "criminal history" in conventional terms, has more withhold eligibility than Defendant A. Why? Because the statute counts withholds, not convictions.
Why the Legislature Wrote It This Way
This isn't a drafting error. There's logic behind it:
- Withholds are a rehabilitation tool. A defendant who received a prior withhold already got their "second chance." They were given an opportunity to avoid a conviction and either succeeded or failed.
- Convictions are different. A defendant who was convicted wasn't given that leniency. They didn't "use up" their second chance - they never got one.
- Equal treatment. A defendant seeking their first withhold deserves the same consideration regardless of whether their prior cases resulted in conviction.
What Does NOT Count Against Withhold Eligibility
Under § 775.08435, the following do not trigger the withhold limitation:
Does NOT Count
- Prior arrests (no conviction)
- Prior charges (dismissed)
- Prior adjudications of GUILT
- Prior convictions (not withholds)
- Juvenile adjudications
DOES Count
- Prior withholds of adjudication
- (Only this - that's the whole list)
How to Use This at Sentencing
If you have prior convictions but no prior withholds, here's the argument:
"Your Honor, while my client does have a prior criminal history, those were adjudications of guilt - not withholds of adjudication. Under Justice v. State, the limitation in § 775.08435 is based solely on prior withholds. Since my client has zero prior withholds, the court retains full discretion to withhold adjudication in this case."
Many judges may not realize this distinction. Be prepared to:
- Cite Justice v. State with the full citation
- Explain the statutory language of § 775.08435
- Show that prior convictions are not disqualifying under the statute
Why Clients Care About Withholds
A withhold of adjudication means you're not "convicted" of the crime. The practical differences are significant:
| Factor | With Withhold | With Conviction |
|---|---|---|
| Felony conviction on record? | No | Yes |
| Can truthfully say "not convicted"? | Yes | No |
| Record sealing eligible? | Often yes | Usually no |
| Professional licensing impact? | Often minimal | Often severe |
| Employment applications? | Can often answer "No" | Must answer "Yes" |
The Bottom Line
If you've been told your prior record prevents a withhold, ask the right question: How many prior withholds do I have? Not how many convictions. Not how many arrests. Prior withholds.
If the answer is zero, you have the same statutory eligibility for a first withhold as someone with no criminal history at all. The court may still consider your full record in its discretion, but the statutory limitation doesn't apply.
Prior Convictions? You May Still Qualify for a Withhold.
Many defendants with prior records are told they can't get a withhold. That's often wrong. Call now to discuss your actual eligibility under Justice v. State.
Sources
- Justice v. State, 313 So. 3d 743 (Fla. 2d DCA 2020)
- F.S. § 775.08435 - Limitations on Withholding Adjudication
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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.