Last updated by at .

Adjudication Withheld | Collateral Consequences

Adjudication Withheld

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.  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.  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:

  1. The prosecutor must file a written motion with the court requesting that adjudication be withheld; or
  2. 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.

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.

Circumstantial Evidence

Circumstantial Evidence

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

How Can I Drop Domestic Violence Charges?

How Can I Drop Domestic Violence Charges?

Can I Drop Domestic Violence Charges?

Domestic Violence Charges

This question typically comes up in one of two ways. First, the victim of domestic violence will call to speak with an attorney and say that he or she does not want to press charges. Second, the defendant will call and tell the attorney that his or her significant other does not want to prosecute the case. When you need an attorney website, reach out for web design palm springs.

It is easy to get jaded after hearing these questions time after time and the individual speaking to you once an explanation for every answer you provide. A domestic violence attorney needs to remember that this is probably the most traumatic incident in that person’s life. Whether you are handling criminal domestic violence charges or civil domestic violence injunctions, these cases require a lot of patience and compassion.

Criminal Domestic Violence | Who it the Victim

The answer that people do not want to hear is that the victim or the alleged victim cannot drop criminal domestic violence charges.  There is hope.  Just keep reading. The reason why is because the “person victim” is not the “legal victim.” In criminal domestic violence cases, the victim is the State of Florida. Hypothetically, let’s assume that the defendant’s name is John Smith. A criminal domestic violence case would be titled “The State of Florida vs. John Smith.” The State of Florida is the party to the case. The “person victim” who suffered or allegedly suffered the abuse is merely a witness.

Domestic Violence Injunctions | Who is the Victim

Civil domestic violence cases are different. In a civil domestic violence case the victim or alleged victim goes to the courthouse and files a Petition for Protection against Domestic Violence. Again, let’s use John Smith as the alleged perpetrator and his wife Jane Smith as the alleged victim according to Divorce Lawyer Chicago. Jane Smith would file the petition and the case would be titled “Jane Smith vs. John Smith.” Jane Smith would be what is called “The Petitioner” in this hypothetical case and John Smith would be called “The Respondent.” The Petitioner is the individual who is requesting a domestic violence restraining order. Notice how the first party in the criminal domestic violence case is “The State of Florida” while the first party in the civil case is the individual “Jane Smith.” Jane is not just a witness in the civil case, Jane is a party to the civil case. Jane can voluntarily dismiss the civil case at any time because she is the prosecuting party. The Office of the State Attorney decides whether to prosecute in the criminal case.

Frequently Asked Questions Concerning Domestic Violence Charges

Attorneys who defend domestic violence cases hear a lot of the same questions repeated in various forms. Chances are that your idea is not something we haven’t heard before, so ask before you do. Some of the more common questions are:

  • Will the state drop charges if I write a letter to the state attorney?
  • Will the state drop charges if I say it never happened?
  • What will happen if I don’t(or the other party doesn’t) show up for court?
  • What if I just refuse to cooperate?
  • Can’t I just tell the judge that I don’t want to prosecute?

The Answers

Understanding that there are no guarantees either way, I will address these one by one.

  • The state will probably not drop the charges because you write a letter saying that you do not want to prosecute. This has the potential to do much more harm than good.  It could help the state’s case if it is not worded correctly.  If the letter indicates that you have had contact with the defendant, that could lead to additional charges or the defendant’s bond being revoked.  This is an all around bad idea.
  • If you say it never happened, the outcome depends on your initial statement. Pursuant to Florida Statute 117.10, police officers are allowed to administer oaths. So the statement that you made to the police officer in the beginning of this case was probably under penalty of perjury. Even if you aren’t subject to a perjury charge, you can still be charged with making a false report.  You may expose yourself to significant criminal liability by retracting your statement.
  • You are legally required to show up for court if you have been subpoenaed. You may expose yourself to criminal liability if you do not show up for court after being subpoenaed. Furthermore, the court can issue what is called a writ of bodily attachment and have a police officer go pick you up………….. in handcuffs……………. and you might be required to stay in jail for the remainder of the proceedings in order to assure your appearance. Does this happen? Yes. Does it happen frequently? It depends on the jurisdiction, the policies at the state attorney’s office, circumstances surrounding the case and ultimately the individual prosecutor. Furthermore, it is a violation of the rules of professional ethics for any attorney to advise you not to show up after you have been subpoenaed.
  • There are other ways the state can obtain a conviction if you refuse to cooperate or simply do not show up. Under certain circumstances tapes of 911 telephone calls can be introduced to prove an individual’s guilt even if the witness does not appear. Many times there are other witnesses who can testify to the facts.
  • You may want to speak with the judge directly, but the judge is not allowed to discuss the case with out the state attorney and the defense attorney being present. In the event you do get to speak to the judge, you could put yourself or the defendant in a much worse situation. Additionally, judges are very suspect of individuals who suddenly get amnesia or say that it was all “a big misunderstanding.”

How can I Drop Domestic Violence Charges?

If you want to have criminal domestic violence charges dropped, the victim(aka the witness) should have his or her own attorney separate from the defendant’s attorney. Any appearance of impropriety is alleviated by both parties having separate attorneys. The attorneys can work together to lift the criminal no contact order and/or prepare an affidavit of nonprosecution specific to the case. While there are no guarantees, hiring separate attorneys has proven to have the highest rate of success and getting domestic violence charges dropped or dismissed.

For more information on how to get domestic violence charges dismissed, 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