In Florida, What Does a Withhold of Adjudication or Adjudication Withheld Mean?

In Florida, What Does a Withhold of Adjudication or Adjudication Withheld Mean?

In Florida, What Does a Withhold of Adjudication or Adjudication Withheld Mean?

On television, criminal cases almost always end in either a conviction or a dramatic finding of not guilty. Occasionally, charges are dismissed. But, in the Florida criminal justice system, the process is far more nuanced. That complexity can actually be good news for people who have been charged with crimes in Jacksonville or anywhere within the state of Florida. In fact, due to the existence of a legal concept known as either a withhold of adjudication or adjudication withheld, in Florida, it is possible to enter a plea or in some cases even lose at trial without being formally convicted of a charge. This, especially when the crimes are relatively minor and the accused has little or no criminal history.

However, an accused is not always eligible to receive a withhold of adjudication or an adjudication withheld in all cases. Some prohibiting factors may include the offense for which the individual is charged with and whether the accused has received prior withholds of adjudication. 

Thus we at the Lufrano Legal, P.A. hope that the following information will be informative and assist in clearing up some of the confusion that often accompanies the terms adjudication withheld or withhold of adjudication. For starters, it’s worth noting that here in Florida the terms withhold of adjudication and adjudication withheld mean the exact same thing and are completely interchangeable.

What is a Withhold of Adjudication or Adjudication Withheld? 

In Florida, if an individual enters a plea to a criminal offense or is found guilty after a trial the Judge has to impose some form of sentence. As part of that sentence the Court must decide whether or not this individual should be convicted (also known as being adjudicated guilty) of this particular offense. However, in some cases, the Court can impose a sentence that does not convict the accused of this offense by imposing a withhold of adjudication and adjudication withheld. Said more simply a withhold of adjudication and adjudication withheld is not a conviction.   

How Does a Withhold of Adjudication or Adjudication Withheld Work in Florida? 

The standard sequence in a Florida criminal proceeding involves a trial or plea agreement. If the defendant is found guilty, the court proceeds to sentencing, which may include probation. 

However, Florida law allows for a different type of agreement. The defendant enters a plea of guilty or no contest to the charges, and then the court skips straight to placing him or her on probation without entering a judgment of conviction. The accused is ordered to abide by the terms of probation for a specified period. Depending on the charges, the defendant’s history, and other factors, there are a variety of special conditions that could be imposed if an individual receives a probationary sentence. Some potential probationary terms could include: 

  • Reporting to a probation officer as required
  • Maintaining suitable employment
  • Keeping the probation office updated with current address and employment information
  • Agreeing to allow probation officers to enter the probationer’s residence
  • Support legal dependents
  • Refrain from any further criminal activity
  • Avoid contact with people engaged in criminal activity
  • Paying restitution to victims
  • Performing community service
  • Attending substance abuse counseling, anger management, or other treatment programs
  • Submitting to random drug and alcohol testing

Now if a judge is imposing a probationary sentence after a trial or following a sentencing hearing, then the court has broad authority to enter probationary sanctions or limitations as it deems appropriate to the situation. However if an accused reaches a plea deal or negotiated agreement with the prosecution and this agreement includes a withhold of adjudication and a term of probation, then the court will only impose the probationary conditions agreed upon by the parties.

Successful Completion of Probation

Under Florida law, a criminal defendant who is placed on probation with a withhold of adjudication or adjudication withheld and successfully completes that probation cannot be further sentenced for the crime. In other words, successful completion of probation puts an end to the case. 

It’s important to note, though, that withheld adjudication is not a diversion. Successful completion of a diversion program can result in charges being dismissed, but that’s not the case with a withheld adjudication. No judgment of conviction is entered, but the case is not dismissed and the withheld adjudication remains part of the defendant’s criminal record. 

Probation Violations 

Maintaining a withheld adjudication or withhold of adjudication depends on the successful completion of probation. And, a defendant who violates the terms of the imposed probation may not only lose the withhold of adjudication, but they may also be at risk of even greater penalties than were imposed under the initial probationary sentence. 

It is also worth noting that while there are significant positive aspects to receiving a withhold of adjudication or to having adjudication withheld, should a person be accused of violating the probation that accompanies the withhold, defending against the violation may be even more difficult than prevailing at a trial for the initial underlying charge. The reason being that the standard of proof required to prove a violation of probation is a preponderance of the evidence, which is a much lower standard than proof beyond a reasonable doubt.   

Further, while the court may explain these terms when the plea is entered, many people charged with Florida crimes don’t fully understand the risks associated with entering a plea in exchange for a withhold of adjudication. While this is often a good resolution, it’s very important to understand the full ramifications before entering any plea, and to have an experienced criminal defense attorney assess your case for weaknesses before weighing the pros and cons of pursuing a withheld judgment.

Who Qualifies for Withheld Adjudication? 

The system of withholding adjudication was intended to offer a second chance to people without criminal histories if the court determined that they were unlikely to continue engaging in criminal activity. Since a criminal conviction can create limitations that make it more difficult for someone to participate in society, courts sometimes find it useful to be able to help a criminal defendant avoid getting caught in that trap. 

However, having a previously clean criminal record isn’t a statutory requirement. While it’s much less likely that someone who already has a criminal conviction will be offered to withhold of adjudication, it is sometimes an option. 

The other factor in determining eligibility for withheld adjudication is the nature of the charge. Certain types of crimes are never eligible under Florida law. Most of these are serious felonies. Capital, life, felonies never qualify. Further, an individual charged with a first-degree felony punishable by life or ordinary first-degree felony offenses can only receive a withhold of adjudication if they are sentenced as a youthful offender. Finally, Defendant’s facing second-degree felonies or third-degree felonies may qualify, but only if either: 

  • The prosecutor requests in writing that adjudication be withheld, or
  • The court enters written findings of mitigating circumstances justifying the withheld adjudication pursuant to Florida Statute 921.0026.

Certain other specific crimes may be excluded, or the impact of a withheld adjudication may be limited based on a defendant’s prior criminal history. That said, an experienced Jacksonville criminal defense attorney can tell you whether or not a withhold of adjudication is possible based on the charges, and can explain the factors that will determine how likely a court is to withhold adjudication in your circumstances. 

How Long Does Adjudication Withheld Stay on Your Record? 

Withheld adjudications have different impacts in different circumstances, so it’s important to understand how they appear on your criminal record, how long they’ll appear there, and what effect they will have in different circumstances. 

Just like a conviction, here in Florida, a withhold of adjudication will remain on an individual’s criminal record forever unless the withhold is sealed by court order. That means that unless, after the conclusion of your case, you get the record sealed, this withholding of adjudication will appear on your criminal history for the rest of your life. But, that’s just the first step in determining the impact adjudication withheld may have. Here are answers to some other commonly asked questions about what it means to have adjudication withheld on your record. 

Does Adjudication Withheld Count as a Conviction? 

The simple answer is no, if someone received a withhold of adjudication they have not been convicted of the offense. As such, someone who receives a withhold of adjudication for a felony does not lose their right to vote or to possess a firearm. However, there are questions that may be posed later on in life, like on job applications or contracts, to someone who ultimately receives a withhold of adjudication which can be confusing or tricky. Likewise making sure you answer these questions correctly can be tough. That’s why it’s important to have an experienced and knowledgeable defense attorney in your corner. Additionally, even though a withhold isn’t a conviction having one might still carry some negative repercussions for federal employment or military service. 

Will Adjudication Withheld Show Up on a Background Check? 

Yes, unless the record has been sealed adjudication withheld is part of your criminal history and will show up in a background check. If you’re applying for a job or filling out a rental application that requires a background check, be prepared for questions about your charge, or pre-empt them by explaining in advance. 

Do I Have to List Adjudication Withheld on a Job Application? 

The answer to this question depends on the wording of the application. For example, some job applications–and other applications, such as for apartment rentals or volunteer opportunities–will ask whether you’ve been convicted of a crime or convicted of a felony. Adjudication withheld isn’t a conviction, so you can honestly answer “no” to that question. But, be aware that a background check will turn up the charge anyway. And, read the question carefully. Some other applications use different phrasing, such as “Have you ever entered a guilty plea or pled no contest to a criminal charge?” The answer to that will be “yes,” since you must enter a plea as part of the withheld adjudication process. 

How Does Adjudication Withheld Affect Gun Rights? 

Adjudication withheld does not by itself disqualify a person from owning a firearm in Florida. However, in certain types of cases, the judge may prohibit ownership or possession of firearms during the term of probation. Failure to comply with this restriction could lead to a probation violation that might trigger entry of a judgment of conviction and sentencing for the crime. 

Do you have more questions about gun crime defense in Florida?

Is Adjudication Withheld a Good Deal? 

Like most answers to tough legal questions, the answer is it depends. A withhold of adjudication can be a way for someone charged with a crime in Florida to avoid a criminal conviction and many of the restrictions that come with it. In fact, if after receiving a withhold an individual may in some instances be eligible to seal their record. And, of course, a defendant who is placed on probation is often placed on this type of supervision in lieu of a jail or prison term which is also beneficial. That said there can still be downsides to a disposition that results in a withhold of adjudication.

Thus it’s important to weigh the risks and benefits. Violating probation can have serious consequences. And, most people don’t have the knowledge and experience to accurately assess the strength of the case against them, or whether there may be effective defenses available. 

A conversation with an experienced Jacksonville criminal defense attorney is the best way to protect yourself from serious mistakes in a criminal proceeding. Attorney Matthew Lufrano has the experience you need and offers free consultations to help people who have been charged with crimes gather reliable information. You can schedule yours right now by calling 904-513-3905. Or, if you prefer, fill out the contact form on this site and we’ll reach out to you.

    How Does Bail Work in Florida?

    How Does Bail Work in Florida?

    How Does Bail Work in Florida?

    If you’ve been arrested in Florida, you probably don’t want to sit in jail awaiting trial or the resolution of your case. While some states have begun to move away from cash bail systems, Florida has not. As such, you may be required to post bail or a bail bond before you are released. 

    While most people are familiar with the concept of posting bail or “bonding out,” there is a lot of confusion about the difference between bail and bond, when you do and do not get your money back, and other aspects of the Florida bail system. 

    Bail v. Bond: What’s the Difference? 

    The terms “bail” and “bond” are often used interchangeably, but they are different. While securing bond is more affordable in the short-term and may allow a defendant who can’t afford bail to get out of jail and back to work and family, bond is more expensive in the long run.

    What is Bail? 

    Bail in Florida is the amount set by the court to secure pretrial release. The amount of bail is determined based on a number of factors, including:  

    • The crime the defendant is accused of
    • The weight of evidence against the defendant
    • Past convictions and other past conduct
    • Failure to appear in court in the past
    • Ties to the community including family in the area, length of local residence, and employment history
    • Whether the defendant’s release poses a danger to the community
    • Whether the defendant poses a flight risk
    • Financial resources 
    • Mental condition
    • The source of funds used to post bail or secure bond

    There are also considerations specific to certain crimes, such as the value of controlled substances involved in a drug-related crime or the likelihood of danger or intimidation to victims. Ultimately, the court may consider any factors it deems relevant. 

    Terms of Pretrial Release

    A defendant who is released on bail (or through a recognizance bond or other arrangement) pending trial, certain conditions are attached. Under Florida law, a person released pending trial must: 

    • Not engage in any type of criminal activity
    • Refrain from communicating with the alleged victim, if the court enters a no-contact order
    • Comply with any additional terms of release ordered by the court

    Failure to comply with such Court orders can result in the revocation of a defendant’s bond, which is not only expensive, but would also result in the defendant being placed back in jail. So, it is very important that you understand and comply with the terms of pretrial release. If you have questions or are uncertain, ask your attorney. And, of course, it’s critical that you are present and on time for every scheduled court appearance. If an actual emergency prevents you from appearing in court, contact your attorney as far in advance of the court date as possible. 

    Where Does the Bail Money Go? 

    Bail is deposited with the local jail, and is held until the defendant has fulfilled all of his or her obligations to appear in court on the charges. If the defendant doesn’t violate the terms of bail, the money is returned after the proceedings conclude. The money is returned even if the defendant is convicted. However, the court may use bail funds to cover outstanding fines, court costs, and restitution. In that situation, any remaining balance after those costs are paid will be returned to the defendant. This typically takes a week or two after the conclusion of the criminal case.  

    Many Florida courts, including the Duval County Court, have standard bail amounts for common misdemeanor charges. However, the court can increase or reduce the amount of bail required. 

    Often, the amount of bail is too high for the accused person to pay in cash. That’s where bail bonds come in.

    What Are Bail Bonds? 

    When a person who has been arrested can’t afford bail, he or she has the option of working with a bail bond agent, sometimes known as a “bondsman” or a “surety agent.”  The standard arrangement is that the defendant (or someone on the defendant’s behalf) pays the bail bond agent 10% of the bail amount. The bondsman then posts the full bail amount. So, if bail is set at $10,000 and the defendant uses a bail bond agent, the defendant pays the agent $1,000 and the agent posts $10,000 or with the court. 

    This is good for defendants in one way: many people who could never afford cash bail to get out of jail can pay the 10% required to secure release through a bonding agent. For some, that makes the difference between a short-term disruption and long-term problems like job loss, critical child care issues, and even the loss of a place to live. But, there’s a downside to bail bonds–the 10% paid to the bondsman is a fee, not a deposit to ensure appearance. 

    That means the $1,000 is gone forever. Even if the charges against the defendant are dismissed entirely, that money isn’t coming back. That seems unfair to many people who have been cleared of criminal charges, and is part of the reason many people have trouble understanding how bail bonds work. But, the bonding agent is a private business unconnected to the court or prosecuting attorney. The service the agent provides is to put up the remaining 90% of the cash required to secure the defendant’s release

    The Bail Bond Process

     A bail bond may be secured by the defendant or someone else, like a family member. The person contracting for the bond not only pays the 10% fee, but must also agree to be responsible for the remainder of the bail posted by the bond agent if bail is forfeited. Depending on the amount of the bail and other factors, the bond agent may require collateral, such as a lien on real estate, to ensure that the agent can recover its losses if the bail is forfeited. 

    Once the contract is executed and the fee paid, the bonding agent deposits the full amount of the bail with the court, and the defendant can be released. The court holds the funds until the case concludes, unless the defendant forfeits the bond by failing to appear in court or otherwise violating the terms of pretrial release. 

    When bail is forfeited, the defendant may be returned to jail, or may be allowed to bail out again with new terms of release. Either way, the bond agent loses its money. That means in a worst-case scenario, the defendant may end up back in jail pending trial and also be on the hook for the full amount of bail posted by the bond agent. In this scenario, the bond agent may sue the person who guaranteed the bond, and may even attach property that was offered as security. 

    Assuming the case concludes without bail being forfeited, the money will be returned to the bond agent. 

    Is Bail Always Required? 

    In some cases, the defendant may be released without posting bail or bond. In most cases, the court has the discretion to grant a recognizance bail or bond amount. This is sometimes called being released on “your own recognizance” or a “personal recognizance bond”. It simply means that the defendant is released without bail or bond and ordered to return to court at the appropriate time. The court essentially relies on the defendant’s word that he or she will comply with any terms of pretrial release, including appearing in court as ordered.  

    Even if bail has already been set, it may be possible for an experienced Jacksonville criminal defense attorney to secure a reduction in bail, or even a recognizance bond. If you or a loved one is in jail awaiting trial because you can’t afford bail, it is in your best interest to consult with a local attorney who is knowledgeable about bail proceedings. 

    Of course, bail is just the first of many issues a criminal defendant faces. Working with an experienced criminal defense attorney from the beginning also helps preserve defenses, ensures that you don’t miss out on important opportunities to raise defenses, make motions or gather evidence, and identify weaknesses in the prosecution’s case. The defense firm of Lufrano Legal P.A. is dedicated to helping people at all stages of the Florida criminal justice process. To learn more about how we can help, call 904-513-3905 or fill out the contact form on this site.

      What is an Injunction? Meaning, Types, & Implications of Florida Injunctions

      What is an Injunction? Meaning, Types, & Implications of Florida Injunctions

      What is an Injunction?

      Meaning, Types, & Implications of Florida Injunctions

      At its most basic level an injunction is a court order instructing someone to stop engaging in a particular type of behavior. Now, while an injunction can be sought as a legal remedy in a variety of situations perhaps the most significant would be injunctions for protection. Here in Florida, we use the term injunction or injunction for protection in place of what some states call a restraining order. Again, this is essentially an order by a court directing someone to no longer have contact with another person or persons. 

      Additionally, it should be noted that while injunctions are civil proceedings, they can have profound impacts on all of the parties involved and could even carry potential criminal implications moving forward. That’s why whether you are seeking an injunction for protection or you have been served with such an injunction it is critical that you reach out to an experienced injunction attorney who can advise you about your rights and options. 

      Why Might Someone Seek an Injunction? 

      Injunctions for protection, commonly known by some members of the public as restraining orders, may be sought if a person is the victim of stalking, cyberstalking, repeat violence, domestic violence, dating violence, or even sexual violence. Additionally, an injunction for protection may be requested for any of these grounds regardless of whether there is an accompanying criminal case. So if you have been a victim of stalking, cyberstalking, repeat violence, domestic violence, dating violence, or sexual violence you may be able to pursue an injunction for protection. 

      Types of Injunctions for Protection in Florida: 

      As mentioned earlier, there are a number of different types of injunctions for protection that a person could seek. In fact here in Florida, our court system recognizes five different types of injunctions for protection. These include:

      • Injunctions for Protection Against Domestic Violence
      • Injunctions for Protection Against Stalking
      • Injunctions for Protection Against Repeat Violence
      • Injunctions for Protection Against Dating Violence
      • Injunctions for Protection Against Sexual Violence

      It’s also worth noting that while these five injunctions for protection have different names, they all provide the same type of protection if granted. That said, these injunctions differ from one another in that they all require different factual allegations in order to be entitled to relief. Therefore if you think you may be entitled to an injunction, but are unsure which to pursue, you can always check with an experienced lawyer before making such a choice.   

      How are Injunction Cases Different from Criminal Cases? 

      There are a number of ways in which an injunction proceeding is different from a criminal proceeding. 

      • Unlike a criminal proceeding, in an injunction the State of Florida is not a party to the case. Instead in a preceding for an injunction the case is between the Petitioner, the person seeking the injunction, and the Respondent, the person against whom the injunction is being sought. 
      • Unlike a criminal proceeding, neither of the parties involved are being charged with a crime or directly facing the risk of jail time. However, an injunction can be a prelude to a criminal case, as violating an injunction is a criminal charge. Additionally, if either party to an injunction proceeding were to behave inappropriately before the Judge, then they could be held in contempt and incarcerated. 
      • Since injunction hearings are not criminal proceedings, the standard of proof required to grant a permanent injunction is far lower than it is to convict a person of a crime. For injunctions the standard of proof is competent and substantial evidence. 
      • Since an injunction proceeding is civil, rather than criminal in nature the criminal rules of procedure don’t apply. 

      Potential Implications of Having an Injunction Imposed Upon You:

      While having an injunction for protection pending against you might not seem as serious as being charged with a crime, injunctions can still significantly negatively impact people in a variety of ways. These impacts from an injunction can be broken down into direct and indirect consequences. 

      Direct Consequences of Having an Injunction for Protection Granted Against You:

      • Limitations on where you can go.
      • Limitations on who you can interact with.
      • Being required to seek some form of counseling or attend court ordered classes.
      • Having to surrender firearms and other weapons.

      Indirect Consequences of Having an Injunction for Protection Granted Against You:

      • Having an Injunction for Protection on your record could impact employer’s choices of whether or not to hire you.
      • Injunctions for protection might stop landlords from renting property to you.

      How Long do Injunctions Last? 

      Typically, if an injunction for protection has been granted prior to a hearing, then the Court will continue that injunction until an actual hearing on the merits is held. However, the duration of an injunction for protection imposed following a hearing will vary on a case by case basis and remains at the discretion of the Judge. As such, these injunctions could be ordered to remain in place permanently or for only a few additional months. However it is worth noting that after an injunction is granted following a full hearing, either party may subsequently petition the Court for the Injunction to be terminated.  

      What is the Difference between a Temporary Injunction and a Permanent Injunction in Florida? 

      Before diving into the differences between temporary or permanent injunctions it is important to understand that the requirements imposed on a person served with an injunction for protection must be followed regardless of whether the injunction is temporary or permanent. That being said the major difference between the two is that temporary injunctions are granted without a hearing, while permanent injunctions are granted after a hearing is held. 

      Are Injunctions in Florida Expensive? 

      Quite simply the answer is no, seeking an injunction for protection is not expensive because there are no court fees assessed when such a request is made. The only potential costs that could arise are optional involving whether you wish to hire an attorney to assist you in the matter. 

      How can an Attorney Help those Seeking an Injunction? 

      There are a variety of ways that attorneys may be able to assist individuals seeking an injunction. 

      1. An attorney can review the allegations in the case and recommend what type of injunction to pursue. 
      2. An attorney can assist a petitioner in preparing for the injunction hearing and knowing what to expect. 
      3. An attorney can assist the petitioner in securing the attendance of witnesses at court proceedings. 
      4. An attorney can assist a petitioner in making an effective presentation of the evidence in support of an injunction at an injunction hearing.  

      How can an Attorney Help those Served with an Injunction? 

      No different than if you are seeking an injunction, there are a number of ways that an attorney can assist you if you have been served with an injunction for protection. 

      1. An attorney can make sure you understand the limitations placed upon you by the Court under the temporary injunction.
      2. An attorney can review the petition for injunction and conduct legal research to determine if the allegations put forth are legally sufficient.
      3. An attorney can discuss with you the allegations made in the petition and can strategize about potential defenses.
      4. An attorney can prepare you for what to expect during the hearing.
      5. An attorney can assist you with the effective presentation of evidence during an injunction proceeding.

      How Does the Appeal Process Work in Florida?

      How Does the Appeal Process Work in Florida?

      How Does the Appeal Process Work in Florida?

      Being convicted of a criminal charge and receiving a particularly harsh sentence is one of the most consequential events that can happen to a person. However, this doesn’t have to be the end of your story. If you believe there were specific problems in your trial that contributed to your conviction then your next step should be contacting an appellate attorney to find out what options are available to you. 

      Hiring an appellate attorney can help identify any mistakes that were made during your trial and advocate to rectify any possible injustices. Such errors at the trial level must be properly preserved by the trial attorney. Further if the trial attorney fails to properly preserve the error with a timely and accurate objection the error most often is deemed to be waived and cannot be relied upon to obtain relief. That’s why it’s critical to have an experienced attorney represent you at the trial level, an attorney who is Board Certified in Criminal Trial Law like Matthew Lufrano, of Lufrano Legal, P.A.

      What is an Appeal?

      An appeal is not a new trial.  An appeal is to review any error that the prosecutor, defense attorney, or trial judge may have made during the course of your trial or sentencing, which is documented by the record on appeal. As such, your lawyer will not call witnesses to testify and will not be able to present any new evidence. The appellate court’s job will be to determine if the lower court made any errors in procedure or application of the law during the  trial process.

      Who Can File an Appeal?

      Though everyone has the absolute right to file an appeal within 30 days of the judgment and sentence, not everyone will have an issue for the appellate court to review.  This is because there must be specific legal problems or issues that occurred during your trial process that led to your conviction, such as the following:

      • Evidence was omitted that should have been reviewed by the jury;
      • Evidence was entered during the trial that should not have been;
      • A member of the jury was not fit to serve;
      • The prosecutor engaged in conduct that prejudiced the jury against you;
      • The jury did not receive proper instructions;
      • The judge’s rulings were legally incorrect;
      • The judge improperly denied a motion to suppress; 
      • The judge improperly denied a motion to dismiss; 
      • The judge considered evidence that was impermissible at sentencing;

      What Are the Steps in the Appeal Process?

      The first step is to file a notice of appeal: 

      While an individual may file his or her own notice of appeal, it is best to hire an appeal lawyer to do this for you. Due to the unique process of an appeal, you want an attorney with experience with the appellate process and who has the skills required to handle an appeal. Your attorney will file your notice of appeal in the court where your original case was heard. You will have 30 days from the date that the order you wish to appeal has been filed in the lower tribunal court to file your appeal.

      The second step will be for your lawyer to obtain a record on appeal from the trial court clerk:

      This document consists of each paper that the clerk filed in your case as well as the court reporter’s transcripts from the hearings, trial and sentencing. If there are any errors in the trial process your attorney will find them in these documents, typically called the record on appeal.

      The third step is to prepare the initial brief and file it: 

      After your attorney reviews the record on appeal, he or she will conduct legal research.  If any error is found, the attorney will prepare and file an initial brief. Based upon the documents within the record on appeal, your attorney will explain the facts of your trial case and present the legal arguments that support your appellate issues. 

      The fourth step is awaiting the answer brief:

      The opposing side will also have a chance to argue against your appeal and will file what is called an answer brief.  They will look at whether the legal arguments raised in the initial brief were properly preserved for appellate review (an issue is preserved if your trial attorney made a proper and specific objection below and a ruling was made by the trial judge).   

      The fifth is determining whether to file a reply brief and/or request oral argument: 

      In an appeal, unlike trial, the defense gets the last word by filing a reply brief.  This brief points out inaccuracies in the answer brief and finalizes the defense argument in writing.  If beneficial, your attorney may also request an oral argument.  The appellate court has the discretion to grant or deny a request for oral argument.  If the court grants oral argument, the attorneys will appear before a three-judge panel to argue in person the points addressed in the written briefs.   

      The last step in the appeal process is awaiting the appellate court’s decision: 

      Depending on the reviewing court, this may take 3 to 6 months.  The appellate court may reverse for a new trial, for a new sentencing, for dismissal of a charge, or affirm your conviction.  If your conviction is affirmed, you may have options to further pursue an appeal in another court or file for postconviction relief.  

      How Can You Watch the Oral Arguments of the Court?

      The majority of the oral arguments are open to public viewing. You can also watch them on the court’s websites. If you need the oral argument schedule, you can also find this on the court’s website. The court’s Marshall will have copies of the court’s daily oral argument schedule, so you will be able to pick one up from him or her.

      How Much Does an Appeal Cost in Florida?

      There are two appellate filing fees – the first is filed in the lower court and normally is $100.  The second filing fee is made to the reviewing appellate court and is $300. This charge may be waived if you are found indigent and are unable to pay. 

      You must pay the filing fee the day that you file the notice of appeal. If there is a voluntary dismissal of this case, your filing fee will not be returned to you. If you cannot afford to pay the fee, you must ask the lower tribunal for a waiver.

      How Long Does an Appeal Take in Florida?

      The appeal process time varies. Some cases are more complex than others, and this contributes to the length of time that your appeal can take. It will also depend on how quickly your lawyer can submit the necessary documents and whether or not the court is particularly busy. In general, you can expect the appeals process to take anywhere from about 8 to 18 months.  

      What Happens if You Win Your Appeal?

      The appellate court may agree that an error occurred that resulted in your conviction. In that case, the court may decide to vacate your conviction or sentence. It can also remand your case for a new trial or sentencing hearing. 

      Do You Have to Hire an Appeal Attorney to File an Appeal in Florida?

      Florida law does not require you to hire an attorney to handle your appeal, so you are free to represent yourself. Although you can represent yourself, that is generally not in your best interest. Appellate law requires a tremendous amount of research and the knowledge of legal reasoning that the average person does not have. Your best chance for a successful appeal is to hire an attorney with experience with the Florida appeals process.

      Can You Appeal a Criminal Conviction that Involves a Plea Agreement?

      When someone enters a guilty plea, he or she must agree to forfeit several rights, and one of those rights is the ability to file an appeal. With all rules, of course, there are exceptions.  In plea agreements, some exceptions to the waiver of your right to appeal are as follows: 

      • If your plea was not entered into freely, knowingly or voluntarily and you move to withdraw the plea before or after sentencing, but the trial court denies your motion to withdraw the plea;  
      • If you reserved the right to appeal a trial court’s ruling on a dispositive pretrial motion, which the trial court previously denied; or
      • If the plea was an open plea to the judge and there was an error in sentencing.    

      Can You Obtain a Copy of the Court’s Decision?

      After the appellate court issues an opinion in your case, the decision will be mailed directly to you or your attorney. The opinion will also be published in the Southern Third Reporter, and you can find it in most law libraries.

      Is a DUI a felony in Florida?

      Is a DUI a felony in Florida?

      Is a DUI a Felony in Florida?

      The answer to the question above, like so many other legal questions, depends on a variety of factors and circumstances. But ordinarily in Florida, if a person is arrested for the offense of Driving Under the Influence (DUI) that did not result in significant injuries and they don’t have at least two prior DUI convictions, then they would be facing a misdemeanor DUI.   

      That said a Misdemeanor DUI, is still an incredibly serious charge that can significantly impact your life. Not only could it affect your ability to drive in the near future, but it could also result in significant fines, a permanent criminal record, probation, and even jail time. Furthermore, the State of Florida can pursue charges of DUI based on one of two theories. First deals with whether an individual’s blood/breath alcohol content was above the legal limit of a 0.08 when the person was driving or in actual physical control of a vehicle. While the second theory focuses on whether a person’s normal faculties, like seeing, walking, talking, or driving, were imparied or diminished in a material way.

      It is also worth knowing that here in Florida a person doesn’t have to be driving to be charged or convicted of DUI. That’s due to the fact that Florida not only criminalizes being in “actual physical control of a vehicle” when impaired or when you have an elevated blood/breath alcohol content. Actual physical control is defined as being in or on a vehicle and having the capability to operate it. As such Florida is one place you probably don’t want to try sleeping off a night of drinking in your car.    

      So, since a DUI in Florida can come with life-altering repercussions. It is important for you to understand just what the law requires and how the judge can sentence you if you are charged with a DUI.

      What is a Misdemeanor in Florida?

      Here in Florida a misdemeanor is any offense for which the maximum sentence can not exceed 364 days in the county jail. As such misdemeanors are less serious offenses than felonies, but still remain quite serious. After all some misdemeanors like domestic battery and DUI can have impacts well beyond any that a Judge were to impose as some can impact your ability to find housing or maintain licensure for certain occupations.   

      So if you find yourself facing a misdemeanor, whether for DUI, Domestic Battery, or another offense, it’s vital to remember that such a charge is a big deal and could have devastating implications on your life. That’s why it’s so important that you reach out to an experienced defense attorney should you have questions about or be facing such an offense. 

      What Happens if Convicted of a Misdemeanor DUI in Florida?

      The punishment for a misdemeanor DUI will depend on a variety of factors including the specific facts of your case, your prior record, the Judge you are before, how high your blood alcohol level was, whether the DUI resulted in damage, and if a minor was present for the offense. That said the minimum penalties that a person inn Florida could receive for a first-time misdemeanor DUI include: 

      • A formal conviction for DUI
      • Six months of Probation
      • A six-month suspension of their drivers license
      • 50-hours of community service
      • A fine of $500.00
      • Attendance at DUI School
      • Attendance at a Victim Impact Panel
      • 10-day vehicle impoundment
      • And being sentenced to the jail time one has already served

      It’s also important to remember that the penalties listed above are simply the minimums allowable under the law. Should a person have a case that involved a particularly high breath alcohol sample or involved damage the penalties can become far more severe. Additionally, should a defendant fail to comply with their sentence for DUI, they can be brought back before the Judge and face additional jail time and sanctions. 

      It is also critical to understand that subsequent DUI offenses will always be more serious than those that preceded them and as such they will open a person up to far greater penalties. For instance, the minimum potential sentence for a second DUI within five years of a person’s first include: 

      • A formal conviction for DUI
      • Twelve months of Probation
      • A five-year suspension of their drivers license
      • Ignition Interlock Device
      • A fine of $1000.00
      • Attendance at DUI School
      • Attendance at a Victim Impact Panel
      • 30-day vehicle impoundment
      • No less than 10 days incarceration in the county jail

      Misdemeanor charges may also require you to have an Ignition Interlock Device (IID) installed. This tiny device is actually a breathalyzer that determines whether or not you can safely drive your vehicle. Not only can these devices be expensive, but they are also frequently inconvenient and embarrassing. As such the best thing you or a loved one can do when facing a serious offense like DUI is to consult with an experienced and well-trained defense attorney

      How Long Does a DUI Stay on Your Record in Florida?

      In Florida, a conviction for DUI charge will stay on your record forever. Thus, a conviction on a DUI will mean that anyone who runs a background check on you, be it a landlord, banker, or a potential employer will know about your past indiscretion. Additionally, if you have a sealable or expungable offense on your record, but haven’t yet had it removed, a conviction for DUI will prevent you from doing so as well. This is why it is so important to get appropriate legal counsel if you have been charged with a DUI. After all there is a huge difference between being arrested for an offense and being convicted of it. 

      What Would Make a DUI in Florida a Felony?

      Now as mentioned above, not all DUI offenses are the same and some DUI offenses in Florida are charged as felonies. A felony is generally described as any offense for which the maximum sentence can exceed 365 days in the county jail. As such, felonies are far more serious than misdemeanors, due to the significantly harsher penalties they carry and the tremendous negative impacts they can have on a person’s life. However, in order for a DUI in Florida to be charged as a felony generally the offense must have either: resulted in the death of another, DUI Manslaughter, OR resulted in serious bodily injury of another, DUI with serious bodily injury, OR have been a third of subsequent DUI. Any of which are extremely serious. So, if you or a loved one finds yourself facing a felony DUI don’t wait, contact an experienced criminal defense lawyer who can assist you. 

      At What Point During a DUI Can I Lose My License? 

      Although you are innocent until presumed guilty, it’s important to know that the ability to drive an automobile in Florida is considered to be a privilege, not a right. As such it is important to know that the choices you make if arrested for DUI will directly impact the status of your driver’s license.

      More specifically if you are arrested for a first time DUI and you provide a breath sample above the legal limit the DMV will suspend your privilege to drive for six month. If however you are arrested for a first time DUI and you refuse to provide a breath sample the DMV will suspend your privilege to drive for 12 months. What’s more if after having your license suspended for refusing to provide a breath sample you ever refuse to provide a breath sample again that constitutes its own crime known as Criminal Refusal. 

      But don’t despair if your license has been taken after a DUI arrest. An experienced criminal defense attorney may be able to assist you in challenging the suspension of your license. That said the deadline for doing so is 10 days from the date your license was suspended. Additionally, if your license was lawfully suspended you may qualify for a hardship license, so if you have just lost your license following a DUI arrest, don’t delay, reach out to the firm of Lufrano Legal, P.A. today.

      What Should You Do After Being Charged with a DUI or Arrested?

      If you have been charged with a DUI, it is vital that you immediately contact a DUI attorney. Such an attorney should be well-versed in all of the minutiae of the law surrounding DUI convictions and can help you make the right choices and say the right things in court. It is especially important to hire an attorney if you believe that you have been wrongfully arrested or if there were aggravating factors involved. Your lawyer will be able to help you work quickly in getting a court date and addressing any license suspension that may have occurred. So, if you or a loved one was recently arrested or charged with a DUI contact the firm of Lufrano Legal, P.A for a free consultation.

      Furthermore, while the best solution to avoid prosecution is never to drink and drive, you or someone you care about may someday be charged with a DUI. But by knowing the laws and working with an attorney, you will find yourself prepared for this stressful time and can get through it without undue stress.