Florida Defendants who receive “withholding of adjudication” on a felony must be cautious

Florida judges have a special authority vested upon them to “withhold adjudication” in a criminal matter pursuant to Fla. Stat. §948.01. This means that the person who enters a plea of “no contest” or guilty plea to a felony charge may, depending on the nature of the felony, not be considered a “convicted felon” under current Florida law. To be offered or receive a withholding of adjudication a citizen generally will not have a much of a preexisting criminal history or has not been convicted of a felony in his or her past. The individual who receives a withholding of adjudication will not lose his or her voting rights and, again, under current Florida law, will not lose their right to possess a firearm in Florida once they have successfully completed probation.


However, a more complex and precarious situation exists in our federal court system for Florida citizens who have received a withholding of adjudication for a felony. Under currently existing federal law, a person currently may be prosecuted under 18 USC §922(g), possession of a firearm by a convicted felon, in federal court even if they have received a withholding of adjudication for a Florida felony. The United States Court of Appeals for the Eleventh Circuit (11th Circuit) is the federal court with appellate jurisdiction over all of the federal district courts in Florida, Alabama and Georgia. Pensacola is within the Northern Federal District Court of Florida.

In USA v. Clarke, et al., Case No. 13-15874, (11th Circuit, March 17, 2015), the Eleventh Circuit discussed that the federal court has held in the past that a “withholding of adjudication” does allow the federal government to prosecute someone who received a felony withholding of adjudication in Florida for a violation of 18 USC 922(g) “possession of a firearm by a convicted felon.” However, in the Clarke, et al. decision the Eleventh Circuit Court is reconsidering their past holdings and have asked the Florida Supreme Court to issue an opinion on the matter. Whether a conviction qualifies for purposes of §922(g) “shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 USC §921(a)(20). “In matters of state law, federal courts are bound by the rulings of the state’s highest court. If the state’s highest court has not ruled on the issue, a federal court must look to the intermediate state appellate courts.”
Two Florida appellate courts have found that under Florida State law a person can NOT be prosecuted under the Florida state statute for possession of a firearm by a convicted felon. But, as stated above, the Eleventh Circuit has in the past ruled otherwise. See United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987). Thus, the Eleventh Circuit has requested that the Florida Supreme Court “weigh in” on the subject. (The Eleventh Circuit has “certified” the question to the Florida Supreme Court). The Florida Supreme Court has never directly addressed this issue before.

Most clients leave court after receiving a “withholding of adjudication” on a Florida state court felony believing that once they are no longer on probation they can possess a firearm. (Provided of course they have no prior felony convictions). However, a person should be extremely cautious-this is not exactly true, yet.

So in the interim before the Florida Supreme Court answers the certified question, the Eleventh circuit is “retaining jurisdiction” over all federal possession of firearm cases that involved a withholding of adjudication under Florida state law until the Florida Supreme Court issues a decision. The Eleventh Circuit states in this opinion that “it has become increasingly clear that perhaps our interpretation of Florida law was either in error or has since changed.”

To be cautious, in my opinion, individuals who received a withholding of adjudication should not possess firearms until this matter is more clearly addressed.

If anyone is interested in following this issue, they may do so by going to the Florida Supreme Court website, click on the tab at the top called “on-line docket,” and enter 15-506, which is the Florida Supreme Court case number for Clarke et al.. From a review of the docket it appears that “oral argument” on the case is going to be heard on October 6, 2015. It will be after oral arguments that the Florida Supreme Court will issue a written opinion.

It’s my belief that the Florida Supreme Court is going to hold that a person who receives a withholding of adjudication on a felony, aka, is not convicted, cannot be prosecuted under Florida law for “possession of a firearm by a convicted felon.” In turn, the federal court will issue an opinion consistent with the Florida Supreme Court’s decision. Until then, people who have a withholding of adjudication on a felony, in my opinion, should not possess a firearm.

Curiously, the Eleventh Circuit in Clarke only addressed those individuals who plea “guilty” and receive a withholding of an adjudication in Florida courts. It did not specifically address individuals who plea “no contest.” This may be a mere oversight or may have been designed to distinguish between those who plea guilty from those who plea “no contest.” Please consult your attorney to obtain their opinion and additional information on this extremely important issue.

At the Law Offices of M. James Jenkins, P.A., we strive to help people with who have been accused of a criminal law violation or who may have been injured in motor vehicle accidents or other matters in involving the negligence of others.