In any criminal matter, getting a withhold of adjudication is important. It can be the difference between a suspended license and continuing to drive, the difference between owning a firearm or not, retaining the ability to vote or not, having the ability to seal an arrest or not, or simply being a convicted felon or not. As such, it is important for any criminal defendant to understand when a court can withhold adjudication upon a plea of guilty/no contest or a finding of guilt by a jury.

Can I Get a Withhold of Adjudication on a Capital, Life, or First-Degree Felony?

Let’s start with the easiest category of offenses. Premeditated first-degree murder and Sexual Battery of a Minor under the Age of 12 are both capital offenses. Only premeditated first-degree murder is also punishable by death. Both are punishable by a mandatory life sentence if death is not imposed. Life felonies are punishable by life in prison. First-degree felonies are punishable by up to 30 years in prison. None of the three are eligible for a withhold of adjudication of guilt. Fla. Stat. 775.08435(1)(a). As such, if a person is charged with one of these types of felonies, the only two ways to avoid becoming a convicted felon are to obtain a not guilty verdict or to negotiate a reduction to a lesser charge.


Can I Get a Withhold of Adjudication on a Second-Degree Felony?

The short answer here is “yes” but only under certain conditions. A second-degree felony is one punishable by up to 15 years in Florida State Prison and a $10,000 fine. Obtaining a withhold of adjudication of such a serious charge is a big win. Generally speaking, the only way it is possible is if the person has no prior criminal history. With any sort of criminal history, it will be tough to convince a court that you are deserving of a withhold of adjudication.

Let’s get into the specifics. First, if the defendant has ever received any withhold of adjudication for any felony that did not arise out of the same circumstances as the present offense before the court for sentencing, that defendant is not eligible for a withhold of adjudication.

Assuming that there is not any prior felony withhold of adjudications, there are two paths towards a withhold of adjudication on a second-degree felony. The first is to have the prosecutor request a withhold of adjudication for the defendant to the court. Fla. Stat. 775.08435(1)(b)1. Once this request is made, the court then will possess the ability to withhold should it choose to do so. Second, the court is authorized to withhold adjudication if it makes written findings of a basis for a downward departure as specified in Fla. Stat. 921.0026. While this list isn’t exclusive, the most common mitigators for a downward departure are:

  • A legitimate, uncoerced plea bargain.
  • The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
  • The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.
  • The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.
  • The need for payment of restitution to the victim outweighs the need for a prison sentence.
  • The victim was an initiator, willing participant, aggressor, or provoker of the incident.
  • The defendant acted under extreme duress or under the domination of another person.
  • Before the identity of the defendant was determined, the victim was substantially compensated.
  • The defendant cooperated with the state to resolve the current offense or any other offense.
  • The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
  • At the time of the offense the defendant was too young to appreciate the consequences of the offense.
  • The defendant is to be sentenced as a youthful offender.
  • The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug-related overdose.


Can I Get a Withhold of Adjudication on a Third-Degree Felony?

The short answer here is “yes.” A third-degree felony is punishable by up to 5 years in prison and/or a $5,000 fine. If the felony is not one of “domestic violence” as defined by Fla. Stat. 741.28 and the person has not received a prior withhold of adjudication on a felony, the defendant is eligible to receive a withhold of adjudication on any third-degree felony.

If the third-degree felony is classified as one of “domestic violence” or the person has only one prior withhold of adjudication, the person is still eligible provided either the State Attorney requests such a withhold in writing or a basis for a downward departure is proved in the same manner as would need to be done for a second-degree felony.

Lastly, if the defendant has two or more prior withholds of adjudication, they are not eligible for any future withholds of adjudication.