Tuesday, May 27, 2014


What does it mean when a judge at sentencing finds that a defendant is adjudicated guilty? In real terms it may trigger time in prison, loss of employment as well as future job opportunities combined with the loss of basic rights of American citizenship such as the right to vote, the right to possess a firearm and the right to travel. Yet far too often defendants are cast out of society by those two simple words uttered by the sentencing judge -adjudicated guilty. 

Adjudication of guilty means that the judge upon looking at all of the facts and circumstances of a case has made a finding that there is in fact guilt. It doesn't always have to be that way. It's possible for the judge to avoid giving a direct adjudication of guilt in many criminal cases.

Prosecutors will ask the sentencing judge for an adjudication of guilt based on the following factors:

1. The more serious the underlying criminal conduct, the more likely it is that an adjudication of guilt will be ordered. In fact, for many criminal acts Florida statutes specify that a judge must make a finding of guilt. For example, a Clearwater, Florida judge in Pinellas County can not withhold adjudication of guilt in a murder case nor a sexual battery case, yet the judges hands are also tied in some less significant cases when the facts justify it such as theft, battery on a law enforcement officer and DUI. Upon making a determination that there is a statutory requirement for an adjudication of guilt under the charged offense, it may be necessary for defense counsel to negotiate with the prosecutor for a charge which is less severe that allows the court more discretion in granting a withholding of adjudication.
2. The prosecutor and sentencing judge by Florida law must inform the victim of any potential change of plea and allow the victim to be present at the time of sentencing. In practice this means that the victim's consent is often required for a sentence which does not include an adjudication of guilt.
3. But of even more importance is the prior record of a defendant. If a defendant has any kind of priors even if only a misdemeanor rather than a felony, then the likelihood of an adjudication of guilt in any given case escalates. This is true because most judges view an adjudication of guilt as the standard plea with anything less than that being a gift. And in a sense this is true under Florida law in that once there has been a withholding of adjudication in a prior case the law is framed to make in more difficult for the sentencing judge to again withhold adjudication without justification on the record. After all, the reasoning goes, the defendant was already given one chance, why should he be given another? In these cases it's important to establish how the defendant has changed and why the previous case should not be counted as a prior for finding an adjudication of guilt.

When possible a withholding of adjudication is always preferable to an adjudication of guilt. It's even in the best interest of the client to ask the sentencing judge for a more punitive sentence if the court will grant a withholding of adjudication. If the plea bargain called for an adjudication with a period of probation and related requirements, it would be well worth exploring possibly adding community service or extended probation for the opportunity of avoiding an adjudication of guilt in the case. Sometimes this can be tough for a client to swallow, yet it's part of what good lawyers should be doing - finding the best possible outcome for their client by persuading the prosecutor and judge during plea negotiations that everyone benefits from a second chance.

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