Legal Insight · Criminal Law (State & Federal)
Withhold of Adjudication in Florida: What It Is, Who Qualifies, and What It Does Not Erase
A withhold of adjudication is a sentencing outcome unique to a handful of states, and Florida is one of them. Under Section 948.01, Florida Statutes, a judge who accepts a guilty or no contest plea — or even a guilty verdict — can withhold the adjudication of guilt and place the defendant on probation instead of entering a conviction. Complete the probation successfully, and under Section 948.04 you are “released from probation” and are “not liable to sentence” for the offense. As a matter of Florida law, you were never convicted.
That makes a withhold one of the most valuable outcomes a defense attorney can negotiate short of an outright dismissal. But it is widely misunderstood in both directions. It is not available for every charge — Florida law flatly prohibits it for some offenses and restricts it for others. And it is not an eraser: the court file stays public, Florida’s own sentencing code still counts a withhold as a prior conviction, and federal immigration law treats most withholds as convictions outright.
This article explains:
- What a withhold of adjudication actually is, and what the judge is deciding
- Which charges can receive a withhold — and which never can
- What a withhold genuinely protects you from
- Where a withhold still counts against you, including immigration and repeat-offense enhancements
- How sealing fits in afterward
What a withhold of adjudication actually is
Every Florida criminal case that ends in a plea or guilty verdict reaches the same fork: the judge either adjudicates the defendant guilty — a formal conviction — or withholds adjudication. Section 948.01 frames the choice around two findings: whether the defendant “is not likely again to engage in a criminal course of conduct,” and whether “the ends of justice and the welfare of society” require imposing the penalty.
When adjudication is withheld on a felony, the statute directs the court to place the defendant on probation. The case does not disappear — probation comes with conditions, supervision, and consequences for violations. But if probation ends successfully, Section 948.04(2) supplies the payoff: the probationer “shall be released from probation and is not liable to sentence for the offense for which probation was allowed.” No adjudication is ever entered. Under Florida law, there is no conviction.
Two practical points follow from that structure:
- A withhold usually arrives through negotiation. Most withholds are the product of a plea agreement — the defense negotiates for the withhold as a term of the plea, or asks the judge for one at sentencing. Whether it is realistic depends on the charge, the person’s record, and the State Attorney’s position.
- A withhold is not diversion. Pretrial intervention under § 948.08 ends in a dismissal of the charge before any plea is adjudicated — we cover that in How to Get Criminal Charges Dropped in Florida. A withhold happens after a plea or verdict: guilt has been determined; only the formal conviction is withheld. The difference matters later, especially for record-clearing and immigration.
Which charges can receive a withhold — and which never can
Withholds were once broadly available, but the Legislature has narrowed them, chiefly through Section 775.08435, Florida Statutes, which restricts withholding adjudication in felony cases, and Section 316.656, which forbids it entirely for DUI.
| Charge | Is a withhold available? |
|---|---|
| Capital, life, or first-degree felony | Never — § 775.08435(1)(a) |
| Second-degree felony | Only on the State Attorney’s written request, or written court findings justifying it under § 921.0026 — and not at all if you already have a prior withhold for an unrelated felony |
| Third-degree felony (generally) | Available in the court’s discretion |
| Third-degree felony that is domestic violence under § 741.28 | Only on the State Attorney’s request or written court findings — same gate as a second-degree felony |
| Third-degree felony with one prior felony withhold | Only on the State Attorney’s request or written court findings |
| Third-degree felony with two or more prior felony withholds | Never |
| DUI under § 316.193 | Never — § 316.656 requires adjudication in every DUI case |
| Most misdemeanors | Available in the court’s discretion |
Three things stand out from that table. First, withholds are largely a misdemeanor and third-degree-felony tool — for the serious felony tiers they are either barred or require the prosecutor’s cooperation, which is one more reason early negotiation matters. Second, withholds are rationed: each prior felony withhold makes the next one harder to get, and two prior felony withholds end the possibility entirely. Third, DUI is its own world — Florida law mandates adjudication for DUI convictions, which is part of why DUI outcomes are litigated so differently; see our DUI defense practice page for how those cases actually get contested.
For a refresher on how Florida grades offenses in the first place — degrees, maximum penalties, and where misdemeanors end and felonies begin — see Misdemeanor Criminal Charges in Florida.
What a withhold genuinely does for you
Under Florida law, the benefits are real and specific:
- No conviction is entered. The formal legal status “convicted” — with consequences that attach to a felony conviction under Florida law, such as the loss of certain civil rights — is avoided so long as adjudication remains withheld.
- Probation, not prison, is the sentence structure. A withhold travels with probation. Complete it and the case ends with no adjudication and no further sentence exposure under § 948.04(2).
- Answering “have you been convicted?” For questions asked under Florida law’s definitions, a person whose adjudication was withheld has not been convicted of that offense. How to answer any particular employment or licensing question depends on how the question is worded and who is asking — some applications ask about pleas or arrests, not convictions, and answering those inaccurately creates new problems. This is a question to put to your lawyer with the actual form in hand.
- Sealing may be available. A withhold is the classic sealing scenario: the case ended without adjudication, so court-ordered sealing under Section 943.059 may be available once supervision ends — subject to the strict eligibility rules, including the list of offenses in Section 943.0584 that can never be sealed even with a withhold. We walk through sealing, expungement, and their limits in If Charges Are Dismissed, Do You Have a Criminal Record?
What a withhold does not do
This is where people get hurt by assuming a withhold works like an eraser. It does not.
| What people assume | What is actually true |
|---|---|
| ”The case is off my record” | The arrest, court file, and disposition are public records unless and until sealed. Background checks routinely surface withholds. |
| ”It won’t count against me later” | Florida’s Criminal Punishment Code defines “conviction” as a determination of guilt “regardless of whether adjudication is withheld” (§ 921.0021) — a withhold scores as prior record if you are ever sentenced again. |
| ”It can’t upgrade a future charge” | Repeat-offense enhancements can count withholds. A second battery is a felony even where the first ended in a withhold — see Misdemeanor Criminal Charges in Florida and Battery and Aggravated Battery Charges in Florida. |
| ”Immigration won’t treat it as a conviction” | Federal immigration law has its own definition of conviction — most withholds meet it (next section). |
| ”Sealing is automatic” | Sealing after a withhold requires an FDLE certificate and a court petition, and some offenses are permanently ineligible — including domestic violence battery, as we cover in Criminal Charges for Domestic Violence in Florida. |
The immigration trap: a withhold is still a “conviction” in federal immigration law
For a noncitizen, the single most dangerous assumption about a withhold is that it avoids immigration consequences. Federal law says otherwise. Under 8 U.S.C. § 1101(a)(48)(A), a “conviction” for immigration purposes includes cases where “adjudication of guilt has been withheld,” so long as two things happened: a judge or jury found guilt — or the person entered a plea of guilty or no contest, or admitted sufficient facts — and the judge ordered “some form of punishment, penalty, or restraint” on the person’s liberty. Probation qualifies. Court costs can qualify.
That means the standard Florida withhold — a no contest plea, adjudication withheld, probation imposed — is generally a conviction in immigration court, no matter what it is under Florida law. A plea structured to protect a Florida record can still trigger removal proceedings, block naturalization, or bar relief. This is exactly why a noncitizen should never accept any plea — even one a criminal defense lawyer calls a win — without immigration-specific advice. We cover how criminal cases and immigration status interact in How Criminal Charges Can Affect Immigration Status in Florida, and our office handles both criminal defense and immigration matters precisely because these cases so often arrive tangled together.
The bottom line
A withhold of adjudication is a genuinely valuable outcome under Florida law: no conviction is entered, probation replaces the penalty, and successful completion closes the case with sealing potentially available afterward. It is also rationed, barred for whole categories of charges, visible to anyone who looks, counted by Florida’s own sentencing code, and treated as a conviction by federal immigration law. Whether a withhold is a win in your case — and whether something better, like diversion or dismissal, is realistically on the table — depends on the charge, your record, your immigration status, and your goals. That evaluation belongs at the front of the case, not the end: the paths to the best outcomes close early, as we explain in What Do Pending Criminal Charges Mean in Florida? If you or a family member is facing charges in Broward County, contact MK Law — our criminal defense practice can evaluate whether a withhold is the right goal in your case, and the phone is answered 24/7.
Frequently asked questions
Is a withhold of adjudication a conviction in Florida?
Not under Florida law. When adjudication is withheld, no conviction is entered, and if probation is completed successfully, § 948.04(2) provides that you are released and not liable to sentence for the offense. But other legal systems apply their own definitions: federal immigration law counts most withholds as convictions, Florida’s sentencing code scores them as prior record, and other states or federal agencies may treat them differently.
Will a withhold of adjudication show up on a background check?
Usually, yes. The arrest and the court disposition are public records unless the record is later sealed. A background check will typically show the charge and a disposition of “adjudication withheld.” What it should not show is a conviction — but whether a particular screening company reports it accurately is another matter.
Can I say I have never been convicted of a crime?
Under Florida law’s definitions, a withhold means you were not convicted of that offense. But read the actual question before answering: many applications ask whether you have ever entered a plea, been arrested, or been placed on probation — and a withhold involves all three. Answer the question that was asked, accurately, and get legal advice when the form is ambiguous or the stakes are high.
Can a withhold of adjudication be sealed?
Often, yes — a plea with adjudication withheld is the classic case for court-ordered sealing under § 943.059, once supervision has ended and if you meet the eligibility rules. But it is not automatic, Florida generally allows only one sealing or expungement in a lifetime, and some offenses — including domestic violence battery — can never be sealed even with a withhold.
Does a withhold protect my immigration status?
Generally, no. Federal immigration law defines “conviction” to include withheld adjudications where there was a plea or finding of guilt plus any punishment, penalty, or restraint — and probation counts. A noncitizen should get immigration-specific legal advice before accepting any plea, including one with a withhold.
Can I own a gun after a withhold of adjudication on a felony?
This is one of the most litigated and least intuitive questions in this area, and the honest answer is: do not assume anything. Florida’s felon-in-possession statute turns on whether you were “convicted,” and how a withhold interacts with that definition — and with federal firearm law, which has its own rules — depends on the specifics of your case and is an area where the law has shifted. Before possessing a firearm after any felony case, even one that ended in a withhold, get a specific answer from a lawyer who has reviewed your disposition.