Registration of Convicted Felons; when a withhold of adjudication actually constitutes a conviction
by
Chloe Alyn on Sep. 23, 2016
Summary: Even though a withhold of adjudication isn't a criminal conviction within the state of Florida, registration requirements exist affecting people granted a withhold.
As criminal defense practitioners we have all been there. Our client is ever so grateful that we have been able to convince the judge to withhold a formal finding of guilt on the felony charge for which the client has spent many a sleepless night wondering what horrible fate awaited them upon judgment day. However, regardless of whether the client is adjudicated guilty or receives a withhold of adjudication of guilt, probation will advise the defendant that they must register as a felon. It should be noted that this requirement does not apply when the felony is reduced to a misdemeanor, even if the defendant is placed on probation supervised by the Department of Corrections.
The registration requirement and title of the statute in and of itself is troubling and confusing for the defendant whose sentence included a withhold of adjudication.
Florida Statute 775.13 Registration of convicted felons, exemptions; penalties provides:
(1) As used in this section, the term “convicted” means with respect to a person’s felony offense, a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld (emphasis added).
The statute goes on to state that “Any person convicted of a felony in any court of this state shall, within 48 hours after entering any county in this state, register with the sheriff of said county, be fingerprinted and photographed, and list the crime for which convicted, place of conviction, sentence imposed, if any, name, aliases, if any, address, and occupation.” According to one Florida Sheriff’s Office we contacted, the defendant’s information is then placed into a central computer database that may be accessed from a patrol car by law enforcement. So, technically speaking, a defendant who travels to another county on vacation or to visit family for more than 2 days must register with the sheriff of that county. Fortunately, common sense prevails in our jurisdiction. Lisa Hoddinott, Probation Officer in the Pinellas Department of Corrections Office, indicates that the 48-hour registration requirement is not widely enforced. While a client must abide by probation rules, Ms. Hoddinott generally requires her probationers to register only upon moving or establishing residency in a new county.
Pursuant to FS 775.13(4)(c), the registration requirement ceases once an offender has been lawfully released from incarceration or other sentence or supervision for a felony conviction, (keeping in mind the definition of “convicted” above) for more than 5 years prior to such time for registration, with a few exceptions listed in this section. If one of the other exceptions in the statute do not apply, the penalty for failure to comply can result in a new criminal charge of Failure to Register, which constitutes a second degree misdemeanor. In short, a defendant, even one receiving a withhold of adjudication, should register to avoid risking: a violation of probation, the possibility of an adjudication of guilt on the original charge and a new misdemeanor charge.
Law Enforcement in each county may take a very different approach regarding enforcement of this statute. It is incumbent upon us as criminal defense attorneys to inform our clients of the existence of this statute, the duty to comply and potential consequences of noncompliance.