By David S. Katz
Being convicted of certain crimes can result in an application for a CWFL being denied or a CWFL being revoked if one had previously been issued. The question arises, when is a person “convicted” such that their ability to obtain or retain a CWFL is negatively affected?
What is a “withhold of adjudication?”
Under Florida Statute §948.01(1), “[i]f it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt.” If a court adjudicates a person “guilty” of a criminal offense, then that person has been “convicted” of the crime. Conversely, if a court withholds adjudication of guilt, then for most purposes that person has not been convicted of the crime. That being said, there are times when Florida law considers a withhold of adjudication to be a conviction for purposes of causing certain negative legal consequences.
The issue of whether or not a withhold of adjudication constitutes a “conviction” for purposes of firearms restrictions imposed upon “convicted felons” was addressed in State v. Menuto, 912 So.2d 603, 607 (Fla. 2nd DCA 2005). In Menuto, Florida’s Second District Court of Appeal ruled that a withhold of adjudication is not sufficient to constitute a “conviction” for purposes of restricting felons from firearms and that only an adjudication of guilt would suffice.
However, there are times when a withhold of adjudication for certain criminal offenses can result in negative consequences with regard to a person’s ability to obtain or retain a CWFL. The following are examples of such difficulties that may result from persons receiving withholds of adjudication for certain criminal offenses:
(A) Florida Statute §790.06(2)(k) provides that the Florida Department of Agriculture and Consumer Services may not issue a CWFL if the applicant “had adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been sealed or expunged.”
(B) Florida Statute §790.06(3) further provides that “[t]he [Florida] Department of Agriculture and Consumer Services shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department of Agriculture and Consumer Services shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years.”