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Old July 8, 2012, 09:31 AM   #1
hogdogs
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Domestic Violence Adjudication Witheld???

Seems in Fl. a person who was sentenced as "Adjudication Withheld" for Misdemeanor DV can apply for CCW after 3 years has passed since end of all obligations such as probation.

So is there such a stipulation for purchasing from an FFL dealer using the 4473 form?

If not, than is it just a ban from being able to legally purchase from a dealer or is it an implied ban on the right to own modern firearms?

Brent
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Old July 8, 2012, 10:23 AM   #2
Willie Sutton
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From one of the many "free legal advice" providers, it is not a "Conviction", thus the legal answer to "have you ever been convicted of a xxx" is "No", and thus it's not a disqualifying event. Rationally, why would Florida allow someone to be issued a CCW but not be permitted to own a frearm?

Generic answer:


"Withheld adjudication generally refers to a decision by a judge to put a person on probation without an adjudication of guilt. It means a person is not found guilty legally by the court. If the person successfully completes the terms of probation and has no subsequent offenses, no further action with be taken on the case and the offense for which adjudication was withheld is typically not considered a prior conviction for purposes of habitual offender sentencing. If the person does not complete the terms of probation, a finding of guilty may be entered and the person may be sentenced according to the punishments"



Answer provided by a Florida criminal defense attorney;


"Your original crime occured in the State of Florida. You entered a plea, of course, in Florida. At the time of sentencing, you were NOT adjudicated guilty. As such, you were NOT a convicted felon. Therefore, pursuant to the laws of Florida, you did not lose your civil rights and you were not prohibited from owning or possessing a firearm.As Florida does not prohibit you from owning a firearm, neither will any other state. You should feel free to purchase a firearm.As to this charge, any time you are asked the question of having been CONVICTED of a crime, you can lawfully say not. Assuming it is not a prohibited offense, and you've never been convicted of any other crime, you might want to consider having this offense sealed. Such an action might help eliminate any problems in the future."



As always, asking an attorney who YOU pay for adviice is the only real advice to trust. With that said, I'd expect one of our friendly "I am a lawyer, but not YOUR lawyer" members to add to the conversation.




Willie


.

Last edited by Willie Sutton; July 8, 2012 at 10:31 AM.
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Old July 8, 2012, 10:26 AM   #3
Aguila Blanca
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Quote:
Originally Posted by Hogdogs
Seems in Fl. a person who was sentenced as "Adjudication Withheld" for Misdemeanor DV can apply for CCW after 3 years has passed since end of all obligations such as probation.

So is there such a stipulation for purchasing from an FFL dealer using the 4473 form?

If not, than is it just a ban from being able to legally purchase from a dealer or is it an implied ban on the right to own modern firearms?
I am not a lawyer, so I hope Frank Ettin or Bartholomew Roberts or Spats McGee will join in here, but this appears to my layman's eyes as offering a way for the person to retain his/her RKBA. The 4473 asks specifically if you have ever been convicted of domestic violence. Based on what I'm reading into your post, "Adjudication withheld" would seem to mean that there is NO CONVICTION at the time of the trial, and if the person keeps out of trouble for the three year probation period the charge goes away and does not result in a conviction.

Ergo, the person can honestly answer "No" on the 4473.
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Old July 8, 2012, 12:16 PM   #4
ScottRiqui
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This is from the ATF site:

"What is a conviction is determined by the law of the jurisdiction in which the proceedings were held. If the State law where the proceedings were held does not consider probation before judgment or deferred adjudication to be a conviction, the person would not be subject to the disability.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]"
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Old July 8, 2012, 02:07 PM   #5
Spats McGee
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Well, I'm one of those "I'm a lawyer, but not your lawyer" types. What's more, I'm not a Florida lawyer. With those caveats, I think that Willie, AB and Scott have pretty well nailed it. If adjudication is withheld, then the DV charge is pending until the end of some specified period. At the end of that period, assuming the defendant has stayed out of trouble, I would expect the charge to be dismissed. In that case, the charge never became a conviction, so it would not trigger the MCDV prohibition under federal law.

I don't really know what FL law says on the issue, but I'd take a careful look at whether the court holding jurisdiction has entered any sort of restraining order, which may prohibit the defendant from possessing firearms during that "pending" period. Just a cursory look at FL law turned up this:
Quote:
(1) A person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence, and that has been issued under s. 741.30. Fla. Stat. Ann. ยง 790.233 (West)
Note that the above has been "red flagged" as having been amended, but it at least tells me that there's something out there that warrants investigation.
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Old July 8, 2012, 04:16 PM   #6
Frank Ettin
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Like Spats, I'm a lawyer but not your lawyer, nor am I a Florida lawyer.

While I agree that Spats' overview is sound, I also want to emphasize that I don't know if there is some wrinkle in Florida law I (or Spats) is not aware of.

If real life jeopardy may be involved, a qualified Florida lawyer needs to be consulted.
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Old July 8, 2012, 04:42 PM   #7
youngunz4life
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you're good to go...it is the same as 'first offender program' in some states or first offense dui(that example can be used for other situations).......it 'hangs around' but never turns into a conviction if fees are paid, classes attended, etc.

point being is they hope to convict you on any secondary offense once your one freebee is alloted. Many people don't have that luxury even though it is NOT a conviction...an example is law enforcement, they will do a plea to just have the domestic completely removed if possible due to the time it can take to play itself out
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Old July 8, 2012, 05:42 PM   #8
hogdogs
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I figgered I was "golden" as I voluntarily put all my arms in the care of another until court date... I asked the judge if I could have my self defense arms back at home immediately and he hand wrote on the post hearing paper work... along the lines of... "Defendant may immediately have all firearms returned to residence"

This was at onset of probation etc...

Brent
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Old July 9, 2012, 09:42 PM   #9
ltc444
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This was a timely post. A friend of mine is going to court tomorrow. She will be pleading guilty to a disturbing the peace charge. The charge was knocked down from attempted murder, endangering a child, illegally discharging a firearm and a bunch of other POP charges.

Needless the Police messed up the investigation.

I told her about this type sentencing arraignment in the am. she contacted her attorney and he has included this as a part of the Plea.

Once the actual plea is entered I will post a full description of the incident.
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Old July 10, 2012, 10:07 AM   #10
Aguila Blanca
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Disturbing the peace is not a lifetime disqualifying felony or domestic violence misdemeanor offense.
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