“Adjudication Withheld” Does Not Exempt a Defendant From Birmingham Sex Offender Status

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In some Birmingham sex crime cases, particularly those that involve first-time offenders or those accused of lower-level crimes, the judge has the discretion to withhold adjudication.

There are some favorable elements of a case where adjudication is withheld. In most cases, in exchange for payment of fines, probation and the successful completion of other requirements, the court can withhold an adjudication of guilt, such that the offense would not carry some of the normal penalties it might otherwise.

For example, for those involved in certain qualifying felonies, a withheld adjudication would allow defendants to escape the forfeiture of certain civil rights, such as the right to vote, serve on a jury or hold public office. He or she could also deny having a conviction, even while subject to deposition or while testifying in court. He or she could safely check the “no” box on job applications asking whether the applicant whether he or she has ever been convicted of a criminal offense.

However, as U.S. v. Bridges illustrates, an “adjudication withheld” will not free you of obligations to register as a sex offender, if the court decides that should be part of the punishment.

Alabama Code 15-20-21 holds that a person convicted of a criminal sex offense, including one who has pleaded nolo contendere to a criminal sex offense, may be labeled as an adult criminal sex offender, regardless of whether adjudication is withheld.

A plea of nolo contendere (Latin for “I do not wish to contend) means that the accused neither admits nor disputes the charge. It's often referred to as a “no-contest plea.” It's not technically guilty, but it usually has the same effect as a guilty plea.

While there are restrictions on who can enter a no contest plea, it's generally preferable to a guilty plea (when the evidence is heavily weighted against you) because it cannot be later used in civil cases to establish negligence or malice.

However, in sex offense cases, defendants should be extremely cautious about entering this kind of plea because the penalties for sex offenses – even in situations where adjudication is withheld –can be severe.

In the Bridges case, the defendant was arrested and later indicted by a federal grand jury for one count each of traveling in interstate commerce and knowingly failing to update his sex offender registration.

Previously, the defendant had been arrested for attempted sexual battery in Florida. He had pleaded nolo contendere and adjudication was withheld. He argued that this meant that the case did not qualify as a conviction within the meaning of the Sex Offender Registration Notification Act.

However, the district court rejected this argument, as did the U.S. Court of Appeals for the Fourth Circuit.

This defendant had adjudication withheld in his 1999 sex offense case, and was instead ordered to pay court costs, serve two years of probation (with the option of terminating if he agreed to serve in the U.S. Army) and three days in jail.

As part of that judgment, however, he was required to register as a sex offender.

He was arrested the following year for failing to register. He received an additional one-year of probation. When he failed to report to probation the following year, he was sentenced to more than two months in jail.

There were no other issues until 2010. He moved from Florida to Virginia. He properly registered as a sex offender. However, when he again moved out-of-state, he failed to register again.

It was in this scenario that the question arose regarding whether an adjudication withheld excused him from the requirement to register as a sex offender.

The court found that the National Guidelines for Sex Offender Registration and Notification explains that the character of a conviction is not dependent upon the nominal changes or terminological variation. Under this interpretation, an adult sex offender is considered to have been “convicted” for the purposes of registration if that offender remains subject to consequences based on that conviction.

This ruling, the court noted, has been reinforced by decisions in two other circuits, each of which concluded that a nolo contendere plea accompanied by an adjudication withheld is still considered a “conviction” under federal law.

If you have been arrested for a sex crime in Birmingham, contact Sex Crime Defense Attorney Steven Eversole at (866) 831-5292.

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