Adjudication Withheld | Collateral Consequences

May 30, 2016 by Michael Dye

Adjudication Withheld

Florida Statute 948.01 gives the trial court discretion to “withhold adjudication” after imposition of a sentence of probation in felony cases. You are supposedly spared the collateral consequences of a criminal conviction if adjudication is withheld and when you need a rehab center, go to this agency. There are several benefits to having adjudication withheld. You can say that you have never been convicted of a crime on employment applications. Your keep your civil rights. You are eligible to have your record sealed after you complete probation and pay all court costs and fines says Covington DUI Attorney. Having adjudication withheld would appear to be a “get out of jail free” card or a “free pass.” However, a withhold of adjudication is not without collateral consequences. Don’t let the following talk you out of accepting a withhold of adjudication. Talk to your lawyer about the decision. A withhold is almost always better than an outright conviction.

Adjudication Withheld -When You Can’t

The Florida Legislature has been slowly eating away at the offenses that qualify for a withhold of adjudication. Adjudication cannot be withheld for a First Degree Felony. Adjudication cannot be withheld in Second Degree Felonies unless one of the two following conditions is met:

The prosecutor must file a written motion with the court requesting that adjudication be withheld; or
The court makes written findings of fact that the facts and circumstances of the case warrant a withhold of adjudication. In making this finding, the court is required to look to the criteria found in Florida Statute 921.0026.

Third degree felonies are typically eligible to have adjudication withheld. However, if you have had adjudication withheld on two prior felony offenses, you are not eligible to get a withhold of adjudication.

The court is prohibited from withholding adjudication in certain criminal offenses. You are not eligible to receive a withhold for the following offenses:

Florida Statute 784.07 – Assault or Battery of a Law Enforcement Officers, Firefighters, Emergency Medical Care Providers, Public Transit Employees or Agents, or Other Specified Officers;
Florida Statute 316.1935 – Fleeing or Attempting to Elude a Law Enforcement Officer; Aggravated Fleeing or Eluding;
Florida Statute 316.193 – Any criminal offense involving a violation of Florida’s Driving Under the Influence Statute.

This is not a complete list of specific exclusions. These are the statutes that I know off the top of my head.

Adjudication Withheld – When it Doesn’t Count

Sentencing Enhancements:

Although Florida Law authorizes a Judge to withhold adjudication in his/her own discretion, the Florida Legislature also instructs the court to disregard a withheld adjudication and treat it as a prior conviction for certain crimes. A prior withhold for a driving while license suspended will be treated as a conviction in future driving while license suspended cases. The same is true with a withhold in petit theft cases.

Federal Law:

Federal Law does not recognize a withheld adjudication. There is no comparable provision under Federal Law. If you received a withhold of adjudication in a felony case under Florida Law, you are a convicted felon under Federal Law. While Florida Law permits an individual to own a firearm if adjudication is withheld, Federal Law does not. So you can be charged federally for convicted felon in possession of a firearm notwithstanding the withhold.

The same is true with immigration. Criminal convictions can have severe immigration consequences. A withhold on a crime of “moral turpitude” can still result in deportation since Federal Law does not recognize a withheld adjudication.

Foreign Countries:

Foreign countries do not have to and, in my experience, typically treat a withheld adjudication as a criminal conviction. Countries can and do refuse to grant tourist visas to individuals convicted of certain criminal offenses. You can typically come and go as you please at the Mexican Border. I don’t even remember somebody checking my ID most times that I went across the Mexican Border. However, Canada is a bit different, meaning that they, sometimes, actually check your background. People are regularly denied admission to Canada for misdemeanor convictions. Canada may or may not honor the withhold. If you have a withhold, it would be good idea would be to check to make sure you are admissible before you travel to a foreign county, in this case you could use a PNW packable backpack to carry all your important things.

Ft. Lauderdale criminal attorney, Michael Dye, handles cases with complex sentencing issues. Mr. Dye has been able to obtain favorable sentences for clients including downward departures, alternative sentences and numerous withheld adjudications. For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525.

Filed Under: Adjudication Withheld, Criminal Lawyer, Florida Legislature, Sentencing Tagged With: Adjudication Withheld Adjudication Withheld Florida Statute 948.01, civil rights, collateral consequences, convicted felon, convicted felon in possession of a firearm, criminal attorney, criminal defense attorney, driving while license suspended, federal law, first degree felony, Florida Statute 316.193, Florida Statute 316.1935, Florida Statute 784.07, Florida Statute 921.0026, foreign countries, fort lauderdale criminal attorney, ft lauderdale criminal attorney, immigration, moral turpitude, petit theft, second degree felony, Sentencing Enhancements, third degree felony, withhold adjudication

Circumstantial Evidence

April 4, 2016 by Michael Dye

Strong Circumstantial Evidence

What is Circumstantial Evidence

Evidence in a criminal trial can be either direct or circumstantial. Circumstantial evidence is dependent upon inference, logic and/or reasoning to reach a conclusion of fact. Direct evidence is a direct observation of fact that does not need any further thought to reach a factual conclusion. The difference between direct and circumstantial evidence is best shown by example.

Direct evidence – Witness “A” testifies that she saw her husband in bed with another woman.

Circumstantial evidence – Witness “A” testifies that she saw a three pack of condoms in her husband’s suitcase after he returned from a business trip and that there were only two condoms left.

In either instance, a reasonable person could arrive at the conclusion the husband is in a lot of trouble. Most criminal defendants try to avoid generating direct evidence. As such, criminal trials tend to have substantial amounts of circumstantial evidence.

Other general examples of circumstantial evidence include forensic evidence. A fingerprint at a crime scene can be very damaging evidence. DNA evidence in rape cases and murder cases. Odontological evidence was important in the trial of Ted Bundy. Odontological evidence has proven to be reliable in identifying dead bodies.

Use of Circumstantial Evidence

There is a widespread misconception in the general public that circumstantial evidence is somehow weaker than or less than direct evidence. This can actually work to the advantage of the defense when the State’s case is based entirely on or mostly on circumstantial evidence. Make no mistake about it, people can and do get convicted based on circumstantial evidence alone.

Due to this widespread misconception, a clear and concise jury instruction on circumstantial evidence tends to favor the prosecution. An example of a well drafted jury instruction on circumstantial evidence is found in North Carolina Pattern Jury Instruction 104.05 which states:

“The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weight all of the evidence in the case. After weighing all of the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find the defendant not guilty.”

This jury instruction is typically favorable to the prosecution because it brings the issue of circumstantial evidence to the attention of the jury and specifically instructs the jury that circumstantial evidence is no different than direct when it comes to reaching a verdict. It is my experience that most jurors are not comfortable convicting an individual based solely on circumstantial evidence unless the circumstantial evidence is overwhelming. Without the jury instruction on circumstantial evidence, jurors tend to give it less weight which typically works to the benefit of the defendant.

Florida Jury Instruction on Circumstantial Evidence

The Florida Supreme Court eliminated the circumstantial evidence jury instruction in 1981. The reason that the Florida Supreme Court eliminated the jury instruction on circumstantial evidence was because it suggested that the law treats circumstantial evidence differently than direct evidence. In order to justify the elimination of jury instruction on circumstantial evidence, The Florida Supreme Court cited to Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954). In Holland, the United States Supreme Court stated:

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both the jury must use its experience with people and events in weighing the probabilities. “

Circumstantial Evidence in Criminal Trials

Circumstantial evidence is still evidence. It is treated no differently than direct evidence. A jury is required to consider all admissible evidence when deliberating. The amount of weight that the jury gives to each piece of evidence is for the jury to decide. The law does not require a jury to disregard or give less weight to circumstantial evidence. In fact, quite frequently, the circumstantial evidence in a case can be more convincing than the direct evidence.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling cases involving complex forensic evidence including. For more information concerning your specific situation, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

Filed Under: Burden of Proof, Circumstantial Evidence, Criminal Lawyer, Direct Evidence, Evidence, Jury Instructions, Trial Tagged With: burden of proof, Criminal trials, difference between direct evidence and circumstantial evidence, DNA evidence, fingerprint, Florida Jury Instruction on Circumstantial Evidence, Florida Supreme Court, forensic evidence, ft lauderdale criminal attorney, Holland v. United States, North Carolina Pattern Jury Instruction 104.05, odontological evidence, rules of evidence, United States Supreme Court, what is circumstantial evidence, what is direct evidence

Aggravated Battery | Felony Battery

February 9, 2016 by Michael Dye

Aggravated Battery v. Felony Battery

Aggravated Battery vs Felony Battery

Aggravated battery is always a felony, but felony battery is not always an aggravated battery. Simple battery can be charged as felony battery under certain circumstances.

Battery Basics

Criminal battery can be either a misdemeanor or a felony. So why would somebody get charged with misdemeanor battery as opposed to felony battery and vice versa? You will need to know some definitions and some statutes in order to make the determination. Those are all provided blow. However, this is how you will conduct the analysis: 1) is the battery simple or aggravated; 2) aggravated battery is always a felony; 3) if it is a simple battery, does the individual qualify for the felony enhancement due to his/her prior criminal record?; 4) if it is a simple battery, is the victim entitled to special protection by statute?

Battery Definition

Florida law separates the crime of battery into two categories. Simple battery is typically charged as a misdemeanor, but can be charged as a felony under certain circumstances. Aggravated battery is always charged as a felony.

Simple Battery Definition

Florida Statute 784.03 defines simple battery. The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

Aggravated Battery Definition

Florida Statute 784.045 defines aggravated battery. A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

2. Uses a deadly weapon.

Florida has also added a third way to commit an aggravated battery.

3. A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

Felony Battery

Aggravated battery is always a felony. Aggravated battery is sometimes called “aggravated bat” or “agg bat” for short. Simple battery, as defined in Florida Statute 784.03, is typically charged as a misdemeanor, but can be charged as a felony. Simple battery can be charged as a felony if the defendant has a prior conviction for battery, aggravated battery or felony battery.

Simple battery can also be charged as a felony if the victim is in a certain class of individuals or the battery is particularly reprehensible. An example of a classification enhancement would be battery on a law enforcement officer a/k/a battery leo. An example of particularly reprehensible behavior would be throwing bodily fluids at a jail employee. Please note that enhancement, covered in Florida Statute 784.078, covers all employees and not just the guards.

Domestic Battery | Domestic Violence Cases

Domestic battery does not qualify for an automatic felony enhancement. Domestic battery is treated the same as any other battery although domestic cases are typically segregated into designated domestic violence courts for prosecution. All this means is that the potential consequences for a domestic battery are the same as if it were any other person. In reality, domestic battery, as well as all other domestic violence cases, are prosecuted much more harshly than other battery cases.

Felony Battery | Classifications

Simple battery can be charged as felony battery under certain circumstances. All of the circumstances are set forth in Florida Statutes Chapter 784 so I will not include a direct link to each statute, but rather the entire chapter.

Florida Statute 784.03 – a prior conviction for battery, aggravated battery or felony battery enhances a simple battery charge from a misdemeanor to a felony. It is important to note that a withheld adjudication counts as a prior conviction under this statute;

Florida Statute 784.07 – battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers;

Florida Statute 784.074 – battery on sexually violent predators detention or commitment facility staff;

Florida Statute 784.075 – battery on detention or commitment facility staff or a juvenile probation officer;

Florida Statute 784.076 – battery on health services personnel;

Florida Statute 784.078 – battery of facility employee by throwing, tossing, or expelling certain fluids or materials;

Florida Statute 784.08 – battery on persons 65 years of age or older;

Florida Statute 784.081 – battery on specified officials or employees(sports officials and education officials);

Florida Statute 784.082 – battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee;

Florida Statute 784.083 – battery on code inspectors;

Florida Statute 784.084 – battery of child by throwing, tossing, projecting, or expelling certain fluids or materials.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling aggravated battery, felony battery and domestic battery cases through trial. For more information concerning aggravated battery and other battery charges, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

Drug Court | Broward County Drug Court Treatment Program

February 7, 2016 by Michael Dye

Drug Court Works

The Broward County Drug Court Treatment Program is a pretrial intervention program designed to break the cycle of drug addiction which is crippling the criminal justice system. Broward County’s Drug Court program is the second oldest in the State of Florida and the third oldest in the nation. Broward County’s drug court diversion program is divided into felony drug court and misdemeanor drug court. The Broward County Circuit Court handles felony drug court while the County Court handles misdemeanor drug court.

Drug Court is an Alternative to Punishment

Florida Statute 921.002(1)(b) states that the primary purpose of criminal sentencing is to punish the offender and that rehabilitation is secondary to the goal of punishment. While completing drug court is not easy, a defendant who completes either felony or misdemeanor drug court will typically be eligible to have his or her criminal record expunged. Drug court puts rehabilitation first. Accordingly, the concept of drug court appears to be at odds with Florida Statute 921.002(1)(b). Nevertheless, Broward County Drug Court has been in existence for 25 years. There is no current legislative effort to put an end to drug court and, to the best of my knowledge, there never has been any effort to put an end to drug court. The reason why there is no legislative push to end drug court is because it works. Broward County’s Drug Court Treatment Program would have been eliminated long ago if had a high recidivism rate or allowed criminal behavior to continue unchecked. As such, the legislature appears to have turned a blind eye to drug courts across the State of Florida.

Am I Eligible for Drug Court

Different Circuits have different rules. In order to be eligible for Broward County’s Drug Court Treatment Program, you must be over 18, have no prior felony convictions and be charged with a second or third degree felony related to a purchase, attempted purchase or possession of a personal quantity of a scheduled controlled substance listed in Florida Statute 893.033. Drug court is designed to assist individuals with drug problems not drug dealers. Accordingly, any allegation of an intent to sell or deliver to another individual is typically disqualifying.

How do I get Drug Court

Individuals are screened for the drug court program beginning at the time of arrest. A case is typically assigned to drug court by the intake attorney at the Office of the State Attorney. If, for some reason, you qualify, but are not placed in drug court, your attorney can file a motion to transfer your case to drug court

Advantages of Drug Court

A conviction for possession of any type of illegal drug can have devastating consequences on an individuals future. In the Broward County Drug Court Treatment Program, a defendant only waives his or her right to a speedy trial. A defendant may be eligible to seal or expunge his or her criminal record upon successful completion of drug court.

Filed Under: Chapter 893, Criminal Lawyer, Drug Court, Drugs, Legislation, Possession of Drug Paraphernalia, Possession of Marijuana, Sentencing Tagged With: Broward County Drug Court, Broward County Drug Court Treatment Program, controlled substance, criminal attorney, criminal defense attorney, Criminal Lawyer, Criminal Lawyer Fort Lauderdale, Criminal Lawyer Miami, criminal sentencing, drug abuse, drug addiction, drug trafficking, dui attorney miami, DUI Lawyer Fort Lauderdale, expunge criminal record, Florida Statute 921.002(1)(b), fort lauderdale criminal attorney, fort lauderdale criminal lawyer, miami criminal attorney, miami criminal lawyer, personal quantity, pretrial diversion, pretrial intervention program, punishment, rehabilitation, seal criminal record

Assault and Battery | What is the Difference?

December 28, 2015 by Michael Dye

Assault and Battery

Assault & Battery is a Matter of Do or Do Not

The words assault and battery are often incorrectly used together to describe one criminal charge. For example, an individual on a television show might be arrested for “assault and battery.” In reality, assault is a criminal charge and battery is another. It is important to meet with a solicitor for any personal injury and understand that you cannot be convicted of assault and battery under Florida Law because the assault merges into the battery. You need to understand the common law definitions of both words in order to understand how an assault can “merge” into a battery.

What is Common Law?

According to the Miriam – Webster online dictionary, the simple definition of the phrase common law is “the laws that developed from English court decisions and customs and that form the basis of laws in the U.S.” A simplistic, yet very accurate, way to view common law is as the laws that the United States inherited from England. So common law in the various states consists of the laws established by the English legal system until July 4, 1776. The common law did not have published statutes and rules, but rather relied almost exclusively on custom and prior judicial decisions.

Louisiana is the only state that does not use English Common Law. The United States purchased the land, including what is now known as the State of Louisiana, from France in 1803. Not surprisingly, this real estate deal is known as the “Louisiana Purchase.” Louisiana adopted the Napoleonic Code as the basis for its law in 1812 due to its history as a French colony. If you are an attorney and you ever run across a Louisiana state court decision while researching, just ignore it.

Common Law Definition of Battery

The common law definition of battery is “an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.”

Common Law Definition of Assault

Black’s Law Dictionary defines assault at common law as “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.” Since we know that battery is a harmful of offensive touching without the consent of the individual, an alternative definition for assault at common law is the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

Assault Merges into Battery

There is no such crime as “attempted battery.” An attempt to commit a battery is an assault. Likewise, battery is a successful assault depending on your point of view. You can be charged with assault and you can be charged with battery, but not assault and battery.

For example, if you 1) throw a punch at somebody; 2) without lawful justification; 3) he or she sees you throw the punch; 4) he or she believes that the punch may connect; 5) but you miss, that is an assault under Florida Law. If you 1) throw a punch at somebody; 2) without lawful justification and 3) you hit the person causing “harmful or offensive”contact, that is a battery under Florida Law regardless of whether the individual saw it coming.

Here is an easy way to look at it, Master Yoda told young Luke Skywalker “Do or do not……..there is no try.” So if you DO hit somebody, it is battery. If you DO NOT hit somebody, it is assault.

Florida Statute 784.03 | Florida Statute 784.011

Florida maintains the common law definitions for both battery and assault. The Florida Statute defining battery is 784.03. The Florida Statute defining assault is 784.011. As you might imagine, punching somebody is a more serious offense that trying to punch somebody. Accordingly, a first conviction for battery is a first degree misdemeanor. A first conviction for assault is a second degree misdemeanor. However, a second conviction for a battery is a third degree felony punishable by up to five years in prison.

Aggravated Assault | Aggravated Battery

Aggravated assault and aggravated battery are enhanced criminal offenses due to the circumstances surrounding the offense. Aggravated assault is defined in Florida Statute 784.021. Aggravated battery is defined in Florida Statute 784.045. The “aggravating” factor is typically the use of a weapon. For example, let’s say that you and your roommate are having an argument. If you throw a punch at your roommate and miss, that is an assault. If you swing a baseball bat at your roommate and miss, that is aggravated assault and, consequently, a felony.

Domestic Violence

A domestic violence criminal charge arises out of the same underlying statute. Florida law does not attempt to distinguish victims by their relationships to the defendant. However, most, if not all, Judicial Circuits administratively segregate cases involving domestic violence. Domestic violence cases are typically conducted in their own separate courtrooms due to the unique issues that are often present in domestic violence cases.

Certain states do distinguish domestic violence cases from other violent crimes by statute. For example, in North Carolina, Statute 14-33(d) states that an “assault”(modified common law definition to include battery), committed by a individual in a personal relationship with the victim, while in the presence of a minor is an A1 Misdemeanor as opposed to a Class 1 Misdemeanor.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling assault charges, battery charges and domestic violence cases in both county and circuit court. For more information concerning possession of marijuana and other drug charges, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Additional help for this post came from Palm Beach Domestic Violence Defense Attorney Matthew Konecky, Esq. and

Raleigh Domestic Violence Attorney Jane Weatherly, Esq.

Filed Under: Assault, Assault, Assault and Battery, Assault and Battery, Battery, Battery, Common Law, Domestic Violence Tagged With: Assault, Assault and Battery, Assault merges into battery, Battery, Class 1 misdemeanor, Class A1 Misdemeanor, common law, criminal attorney, criminal defense attorney, Criminal Lawyer, Criminal Lawyer Fort Lauderdale, Domestic Violence, Florida Statute 784.011, Florida Statute 784.021, Florida Statute 784.03, Florida Statute 784.045, fort lauderdale criminal attorney, fort lauderdale criminal lawyer, Napoleonic Code, North Carolina Statute 14-33(d)