Author Topic: Adjudication withheld  (Read 2763 times)


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Adjudication withheld
« on: March 27, 2016, 11:24:24 AM »
Hi, new to the forum and had a question about my criminal record.
I had a DUI in early 1999 which i did probation, paid a LOT of fees and fines, went through all required classes.
Late in 1999 (yea it  wasn't a smart year for me) i had a misdemeanor domestic assault charge where  adjudication of guilt was withheld after i completed probation, fines, classes etc
Since then I've had no arrests or anything other than traffic citations, I even hold a Class A drivers license with HAZMAT endorsement.
 Am i eligible to own a firearm and/or obtain my CCW permit here in FL (same county and state charges occurred)


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Re: Adjudication withheld
« Reply #1 on: April 08, 2016, 02:52:10 PM »

Section 790.06(1)(f), Florida Statutes, provides as follows in terms of grounds to deny a concealed weapons permit:

Does not chronically and habitually use alcoholic beverages or other substances to the extent that his or her normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired if the applicant has been committed under chapter 397 or under the provisions of former chapter 396 or has been convicted under s. 790.151 or has been deemed a habitual offender under s. 856.011(3), or has had two or more convictions under s. 316.193 or similar laws of any other state, within the 3-year period immediately preceding the date on which the application is submitted.

The 1999 DUI conviction should not impact that provision.  In terms of the domestic violence charge, Section 790.06(1)(k) provides as follows:

Has not had adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been sealed or expunged;

The 1999 domestic violence charge should not impact that provision given the amount of time that has passed.  However, the domestic violence charge could be relevant with regard to federal law.  18 U.S. Code § 922(d)(9) provides that:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person

. . .

(9)  has been convicted in any court of a misdemeanor crime of domestic violence.

The question is, what is a conviction for purposes of federal law?  In the context of what constitutes a felony conviction that disqualifies one under federal law from owning a firearm, the court in U.S. v. Sample, 136 F. 3d 562 (8th Cir. 1998), held as follows:

Mr. Sample also argues that the government failed to prove that he had a prior conviction as required by 18 U.S.C. § 922(g)(1), first, because at the time of his arrest in this case he had not been sentenced following his guilty plea to the federal drug charge, and, second, because the pertinent Arkansas statute mandated expungement of his state criminal record. We find, however, that Mr. Sample's guilty plea, which was accepted by the district court, constitutes a conviction under § 922(g)(1). See United States v. Millender, 811 F.2d 476, 477 (8th Cir.1987) (per curiam) (decided under prior statute; “[f]ederal courts have clearly established that a voluntary plea of guilty is a conviction”), and United States v. Woods, 696 F.2d 566, 570 (8th Cir.1982) (decided under prior statute; “normal meaning of the term ‘conviction’ is that criminal proceeding where guilt is determined, either by verdict or plea”); see also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 114, 103 S.Ct. 986, 992, 74 L.Ed.2d 845 (1983) (“conviction” under § 922(g)(1) is established by defendant's guilty plea and its notation by court, followed by sentence of probation). Because we find that Mr. Sample had been convicted of the federal drug charge at the time of his arrest in this case, we need not address whether his state criminal record was sufficient to establish a conviction under § 922(g)(1).

Similarly, in U.S. v. Benson, 605 F. 2d 1093 (9th Cir. 1979), it was held as follows:

It is undisputed that Benson received a firearm which had been shipped in interstate commerce. His sole contention on the merits is that the trial court erred in ruling that his earlier state conviction satisfied the prior conviction element of s 922(h)(1).

Benson pleaded guilty in 1974 to a charge of possession of a controlled substance in violation of Illinois' Controlled Substance Act, Ill.Rev.Stat. ch. 561/2, s 1402. Violation of s 1402 is a felony and carries a ten year maximum prison term. The state court sentenced Benson to 30 months of probation.

It is not clear on the record whether he was “convicted” under Illinois law.2 Whether he was convicted for purposes of s 922(h)(1), however, is ultimately a question of federal law. United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979); United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976). See also Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946); United States v. Herrell, 588 F.2d 711 (9th Cir. 1978); Hyland v. Fukuda, 580 F.2d 977, 980-81 (9th Cir. 1978); United States v. Locke, 542 F.2d 800, 801 (9th Cir. 1976); United States v. Potts, 528 F.2d 883, 887 (9th Cir. 1975) (en banc) (Sneed, J., concurring in result).

The Supreme Court has declared that

A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.

Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See also Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). After explaining to Benson the consequences of pleading guilty to the charge of possession of a controlled substance, the Illinois court ordered that his plea “be received and accepted.” We believe the court's acceptance and subsequent sentencing constitute a “conviction” under s 922(h)(1).

In Locke, we were faced with a claim similar to that made here. Locke pleaded guilty to a charge of burglary in the nighttime. The state court ordered under an Idaho statute that judgment be withheld for a period of three years and that Locke be placed on probation. We held that under “controlling federal law,” Locke had been convicted of a felony. 542 F.2d at 801.

We find that Locke controls Benson's claim and thus reject the asserted claim of error.

Based on the above, to decide whether or not the domestic violence plea might prohibit you from possessing a firearm under federal law, we would need to know if you entered a guilty plea or some other plea.


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Re: Adjudication withheld
« Reply #2 on: April 12, 2016, 11:27:12 PM »
It was No Contest
BTW, my wife and I attended the seminar in Destin Florida tonight, lots of useful info and i believe we will be joining in the future!