Withhold of adjudication

What affect does a withhold of adjudication have on your gun rights?

In Florida, judges have authority pursuant to Florida Statute § 948.01 to “withhold adjudication” of guilt, even in most felony cases, and place the offender on probation. “If the defendant successfully completes his probation, he is not a convicted person but if the probation is violated the court may then adjudicate and sentence.” United States v. Thompson, 756 F. Supp. 1492, 1495 (N.D. Fla. 1991) citing Thomas v. State, 356 So. 2d 846, 847 (Fla. 4th DCA 1978).  Once the probationary period is over, the withhold of adjudication becomes permanent and the court no longer has jurisdiction to adjudicate the offender guilty. See Id.  See also Davis v. State, 623 So 2d 579 (Fla 3d DCA 1993)

      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.

     The effect of a withhold of adjudication at the state level

At the state level, 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 (Fla. 2d 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 convicted felons from firearms and that only an adjudication of guilt would suffice.

     The effect of a withhold of adjudication in Florida at the federal level

Further, under Federal law, “What constitutes a conviction for purposes of 18 U.S.C. 922 (g)(1) ‘shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.’ 18 U.S.C. 921(a)(20)(B).” Clarke v. United States, 184 So. 3d 1107 (Fla. 2016).         

In Clarke, Defendant Jenkins was charged with possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1), which makes it a federal offense for a person convicted of an offense punishable by a term of imprisonment exceeding one year to possess a firearm or ammunition. Id.  The Eleventh Circuit Court of Appeals certified a question to the Florida Supreme Court to determine if a guilty plea for a felony for which adjudication was withheld qualifies as a “conviction” under Florida law.  The Florida Supreme Court answered that question in the negative, stating, “a guilty plea for a felony for which adjudication was withheld does not qualify as a “conviction” under that statute.” Id. at 1116.


In summary, a withhold of adjudication under Florida and federal law is not a conviction for purposes of the loss of firearm rights.  Based on the above discussion, a person who receives a withhold of adjudication even in a felony case has not been convicted under Florida or federal law of a felony, nor do they lose their rights to possess a firearm as a convicted felon under either the laws of the State of Florida or under federal law.

Learn how a withhold of adjudication can affect your ability to get a Florida CWFL. Click Here!


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