What Do I Do?
If you have just been arrested for the first time, there are likely several thoughts going through your head.
Am I going to jail?
Will I lose my job?
Can I still go to college?
Will I lose my driver’s license?
Facing criminal charges can be a very stressful experience, especially if you are unfamiliar with the criminal justice system. There are two important things you should know:
1) You are not alone.
An attorney not only advocates for you in Court and files motions on your behalf, but also can serve as your guide and counselor through the process. Simply knowing you have an experienced lawyer on your side can make the experience less stressful for you and for your family.
2) You have options.
Every case and individual situation is different, but many times defendants without criminal records have more options available to them in the court system. Many of these roads can keep you out of jail, out of court, and keep you record intact. Below, we discuss some of these options.
Many State Attorney Offices have diversion programs created for first-time, non-violent offenders. Some of these programs are even available for felony offenses. Because each Office creates and runs its own programs, the specifics of each vary from jurisdiction to jurisdiction. However, there are some basic procedures that are typically the same.
First, an Assistant State Attorney will refer a case to diversion for review. This is totally at the discretion of the Office. There are no standards or laws that would require a prosecutor to refer any case to a diversion program. Your case and prior record will be reviewed by the State Attorney's Office. If you are accepted, you will sign a contract with the State of Florida. As part of the contract, you will agree to waive your right to speedy trial and your case will be abated. Basically, this means your case will be "paused" while you work on completing the program.
Diversion programs generally require you to report periodically to a pre-trial diversion officer and complete community service hours. Other conditions vary depending on the nature of the offense. For example, you may be asked to obtain a drug and alcohol evaluation, attend counseling or educational classes (like impulse control or anger management courses), and random drug screens. Also, for successful completion of a diversion program, it is always important to stay out of trouble with the law.
Depending on the type and level of charge, the program may last anywhere between nine and eighteen months. Once you successfully complete the diversion program, the State then agrees to dismiss the charges against you.
Another option, similar to pretrial diversion programs, is pretrial intervention. The program is similar in that it requires a waiver of speedy trial and can result in the dismissal of charges after participation in the program. PTI differs from PTD programs in that it may be available to any first-time offender (or person with no more than one non-violent prior misdemeanor) charged with any misdemeanor or third-degree felony. However, in many instances, the law requires that the judge, prosecutor, and victim (if there is one), all consent to the program. Pretrial intervention may be available, however, to those who may have more of a prior record (but no prior felony convictions), those facing certain second-degree felonies, or those who do not have the support of the prosecutor and/or victim. This option is available for defendants that have a substantial drug abuse problem (and who are not currently facing allegations of selling narcotics).
What happens if I don't finish the program?
If you leave a diversionary program, whether you are kicked out or simply choose not to finish, you will simply begin the court process over again. Unlike a Violation of Probation, you are not punished for leaving the program, and should not be arrested again, assuming you have not otherwise violated your conditions of release. You can enter a plea, go to trial, or otherwise challenge your case.
Withhold of Adjudication
If you are a first-time offender but not eligible for a diversion program - or if you choose not to complete one- you may still be able to avoid a "conviction" through a plea agreement that includes a withhold of adjudication.
A withhold of adjudication can be beneficial for many reasons. First, if you are entering a plea to a felony, you will not be required to register as a convicted felon and you will not lose your civil rights (like your right to own a firearm or to vote). Also, when completing a job application that asks about prior convictions, you can lawfully state that you have not been convicted of the offense. If you are facing a drug offense, a withhold of adjudication can help you to avoid any mandatory driver’s license suspensions that may be otherwise required.
A Court may not withhold adjudication for a Defendant being sentenced for a capital, life, or first-degree felony. The Court or Prosecutor must make special exceptions to withhold adjudication on any second-degree felony, or any third-degree felony involving domestic violence. (Withholds may also be available on first-degree felonies if the Court is sentencing as a Youthful Offender). A Court normally will not withhold adjudication on a felony for a Defendant with a prior withhold on a felony, and may not withhold on a felony if the Defendant has two prior withholds on felonies. See Florida Statute s. 775.08435
Typically, a sentence involving a withhold of adjudication is accompanied by a fine, community service, and/or probation.
Limitations of a Withhold of Adjudication
It is very important to note that many government agencies, particularly federal agencies, or the governments of other states, may not interpret a withhold of adjudication in the same way - or, they may not honor it at all. It is always important to consult with your attorney regarding the circumstances of your case and situation, and how a withhold of adjudication might help you. Also, if you are moving to another state, or planning a career change, you will want to consult an attorney about the possible implications.
Additionally, if you are placed on probation for the offense, and you violate that probation, you risk losing your withhold of adjudication and being convicted of the original crime. If, for example, you were on probation for a felony drug crime, and you received a withhold of adjudication, a violation of probation means you not only face potential prison time, but also becoming a convicted felon and having your drivers license suspended.
In addition to diversion programs, many jurisdictions have created specialized courts that serve as a separate "track" for your case. These courts are intended to deal with special issues and participation is voluntary, but may be beneficial. Some examples are below:
Drug courts were created to help those in the criminal justice system that are struggling with addiction and substance abuse issues.
Drug Court programs typically require more substantial involvement with counseling and treatment than other diversion programs or probationary sentences. As a result, they can be time-consuming, and may not be the best solution for a person who does not actually have a substance abuse problem. However, these programs are also generally more forgiving of minor mistakes and setbacks (such as a positive drug test).
Another unique feature of Drug Court programs is that they can be an option for repeat offenders who may otherwise be sentenced to jail or prison. Some jurisdictions,like Orange County, also have diversionary Drug Court programs that offer the additional benefit of case dismissal, like a traditional diversion program.
Mental Health Court
Some jurisdictions, like Orange County, offer Mental Health Courts as an option for offenders with limited criminal history facing non-violent offenses. These programs are, of course, more focused on treatment for mental illness, and also can result in the dismissal of charges upon completion.
Similar to mental health courts, some jurisdictions offer Veterans Court, as an alternative way to deal with people in the criminal justice system who served in our country's military.
What happens if I don't finish the program?
These alternative courts differ from diversionary programs in that they are monitored by a judge in a separate courtroom, who has jurisdiction to sentence an offender, inside or outside of the program. A defendant who leaves one of these court programs, whether voluntarily or involuntarily, may go back to the original courtroom to "start over", or may be sentenced by the judge in the alternative courtroom.
What is Best For My Record?
Successful completion of a diversionary program results in a dismissal of the charge. A dismissed charge may be expunged from your record, assuming you meet the other eligibility requirements. A withhold of adjudication, although not a conviction, will show as a No Contest or Guilty plea to the charge, with a withhold of adjudication. Assuming you meet all other eligibility requirements, this record can be sealed, but not immediately expunged.
At Wurtzel Law, we will investigate and thoroughly evaluate all legal defenses to your charge(s), regardless of whether you are a first-time offender. Although you may have some of the options addressed above, we will advise you of all of your options and legal rights.
If you or a loved one are facing criminal charges for the first-time, contact Wurtzel Law for a free consultation. We understand that this can be a stressful and frightening time, and we are here to guide you through this process, calm your fears, and work together to obtain the best possible outcome in your case. Hiring an experienced and understanding attorney may not only protect your future, but make you journey through this tough time as seamless as possible so you can focus on the things in your life that you enjoy.
Benjamin D. Wurtzel
Office: (407)362-1655 Cell: (407)739-5099
390 N. Orange Ave Ste. 2300 Orlando, FL 32801
Twitter: @wurtzel_law Instagram: wurtzellawpllc Facebook: www.facebook.com/wurtzellawpllc