If, for whatever reason, you are unsuccessful in getting your charges dismissed either before or after trial, the next best thing is to receive a withhold of adjudication on your conviction. A “withhold” is one of those quirks of the law that both is and is not a conviction. A “withhold” allows a person to deny having been convicted and leaves open the possibility of sealing and expunging the arrest. Nonetheless, it’ll be on your record.
How do we get a withhold?
The most common method to get one is through negotiations with the Office of the State Attorney. Generally speaking, first-time offenders who have committed relatively minor crimes are eligible with some exceptions, most notably DUIs.
Persons convicted of capital, life, punishable by life, or first-degree felonies will not be eligible to receive a withhold of adjudication. A person convicted of a second-degree felony is only eligible if requested by the State Attorney or the Court makes certain findings. A person convicted of a third-degree felony will be eligible unless they’ve received two prior withholds. A person convicted of a third-degree felony crime of domestic violence or who has received one prior withhold may be eligible if requested by the State Attorney or the Court makes certain findings. Fla. Stat. 775.08435.
Can it be taken away from me?
The short answer is “yes.” In order to receive a withhold of adjudication, Florida law requires that you be placed on probation. There’s no specified length of probation but, generally speaking, you must earn your withhold. If you violate probation, the Court can, and most likely will, adjudicate you guilty of the crime.
If the court screwed up and unlawfully gave you a withhold when it wasn’t supposed to give such a sentence, it will not be taken away from you if the State failed to object at sentencing. The courts have held that such error is not “fundamental” and, as such, will not overturn such a sentence unless the State objected contemporaneously at the sentencing. State v. Rivera, 43 Fla. L. Weekly D1537c (Fla. 5th DCA 2018).