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Mitigating Collateral Consequences

Mitigating Collateral Consequences

What Are Collateral Consequences

Collateral consequences are sometimes referred to as unintended consequences. These are the consequences a person receives from a conviction that are not part of their sentence. Senior District Judge Fredrick Block  stated there are over 50,000 statutes and regulations across the country that impose penalties, disabilities, or disadvantages.[1]

Can Collateral Consequences Be Avoided

There are certain dispositions that can minimize the effect of collateral consequences. However with very few exceptions, you are not entitled to these dispositions as a right. Certain criminal charges may even prohibit these dispositions. However even when charges prohibit results that minimizes collateral consequences, it is still possible to negotiate around these rules.

Withhold of Adjudication: In Florida if the court decides to withhold adjudication on a criminal charge it is not considered a conviction in the state of Florida. You will not be technically be a convicted felon, and you do not lose your right to vote. However there will still be a record of the charges and the disposition of the case. You may also have to register as a convicted felon.

Diversion: In Florida there are several diversion programs that a defendant can go through that will result in a dismissal of their case once the program is complete. Some of these diversion programs are similar to probation, and are even supervised by probation. Other diversion programs are supervised by the court.

Sealing & Expunging

In the state of Florida, with very limited exceptions if you have ever been adjudicated guilty of a crime you can not have a record sealed or expunged. However if you have never been adjudicated guilty of a crime before, based on the charge you may be qualified to have your charges sealed or expunged. If you qualify for your charges to be sealed or expunged, the ultimate decision will rest with the judge.

If you’re wondering what the difference between a sealed record and an expunged record. If a record is sealed then many agencies will not have access to those records without a court order. If the record is expunged then the restriction to those records are even more restricted. While you may qualify to have your record sealed if you have had adjudication withheld. However to get your case expunged, your case will have to have ended without a conviction or have been sealed for at least 10 years.

Foot Notes

[1] U.S.A. v. Chevelle Nesbeth, 15-CR-18 (Eastern District of New York, May 25, 2016) (Citing generally American Bar Association, Nat’l Inventory of the collateral Consequences of Conviction, abacollateralconsequences.org. The sheer number of citizens subject to these collateral consequences is staggering. See How to Get Around a Criminal Conviction, N.Y. Times, at A22 (Oct. 19, 2015)(“Some 70 million to 100 million people in the United States – more than a quarter of all adults – have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges – from voting, employment and housing to business licensing and parental rights.”))