Joseph Peter Clarke v. United States , 41 Fla. L. Weekly Supp. 41 ( 2016 )


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  •           Supreme Court of Florida
    ____________
    No. SC15-506
    ____________
    JOSEPH PETER CLARKE, et al.,
    Appellants,
    vs.
    UNITED STATES OF AMERICA,
    Appellee.
    [February 11, 2016]
    LABARGA, C.J.
    This case is before the Court for review of a question of Florida law certified
    by the United States Court of Appeals for the Eleventh Circuit that is determinative
    of a cause pending in that court and for which there appears to be no controlling
    precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United
    States v. Clarke, 
    780 F.3d 1131
    (11th Cir. 2015), the court certified the following
    question to this Court:
    Florida law prohibits a person from “own[ing] or . . . hav[ing] in his
    or her care, custody, possession, or control any firearm . . . if that
    person has been . . . [c]onvicted of a felony in the courts of [Florida].”
    Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea
    for a felony for which adjudication was withheld qualify as a
    “convict[ion]”?
    
    Id. at 1133.
    Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes
    it a criminal offense for a person to own or have in his or her care, custody,
    possession, or control any firearm if that person has been convicted of a felony in
    the courts of this state.1 Thus, this Court is asked by the Eleventh Circuit to
    determine if, under Florida law, a person is “convicted” for purposes of that statute
    if the person has entered a plea of guilty to a felony offense but adjudication for
    that offense has been withheld. For the reasons that we explain, we answer the
    certified question in the negative and hold that for purposes of section
    790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does
    not qualify as a “conviction” under that statute.
    BACKGROUND AND FACTS
    Joseph Peter Clarke and Bobby Jenkins were codefendants in the United
    States District Court for the Southern District of Florida. Clarke has no issues in
    this appeal and his case is not the subject of the certified question. We are
    concerned here only with the certified question as it relates to Bobby Jenkins. The
    Eleventh Circuit addressed all other claims appealed by Jenkins and Clarke in a
    1. Section 790.23(1)(a), Florida Statutes, also makes it unlawful for any
    person to own or to have in his or her care, custody, possession, or control any
    ammunition or electric weapon or device, or to carry a concealed weapon,
    including a tear gas gun or chemical weapon or device, if that person has been
    convicted of a felony.
    -2-
    separate opinion, and those claims are not at issue here.2 The question now before
    this Court involves whether Jenkins’ prior guilty plea in Florida in 2008, followed
    by a withhold of adjudication as to the felony offense committed by him,
    constitutes a “conviction” under section 790.23(1)(a).
    In this case, the Eleventh Circuit explained that, after a reverse sting, Jenkins
    and Clarke were indicted for conspiracy to commit Hobbs Act robbery, conspiracy
    to possess with intent to distribute five or more kilograms of cocaine, possession of
    a firearm by a convicted felon, and using and carrying a firearm in furtherance of a
    crime of violence. 
    Clarke, 780 F.3d at 1132
    . The evidence at trial revealed that
    Jenkins and Clarke were in a vehicle on the way to the purported home invasion
    robbery and, when confronted by a team of detectives, Jenkins was found with a
    .40 caliber SIG Sauer handgun. See United States v. Clarke, 600 F. App’x 709,
    713 (11th Cir. 2015). In Count 3 of the indictment, Jenkins was charged with
    violating 18 U.S.C. § 922(g)(1), which makes it a federal offense for a person
    convicted of an offense punishable by a term of imprisonment exceeding one year
    to possess a firearm or ammunition. 
    Id. 2. See
    United States v. Clarke, 600 F. App’x 709 (11th Cir. 2015), an appeal
    by both Jenkins and Clarke in which the court considered five claims of error and
    affirmed.
    -3-
    As to the question of whether Jenkins was a convicted felon subject to 18
    U.S.C. § 922(g), the Eleventh Circuit explained:
    In Count 3 of the indictment, Jenkins was charged with
    violating § 922(g), which makes it a felony for a convicted felon to
    possess a firearm. According to the government, Jenkins was a
    convicted felon because he previously pleaded guilty to possession of
    cocaine in Florida. However, although there was a finding of guilt,
    adjudication was withheld. Jenkins argues that because this
    adjudication was withheld, his possession-of-cocaine charge should
    not qualify as a “conviction” under § 922(g).
    
    Clarke, 780 F.3d at 1132
    . What constitutes a conviction for purposes of 18 U.S.C.
    § 922(g)(1) “shall be determined in accordance with the law of the jurisdiction in
    which the proceedings were held.” 18 U.S.C. § 921(a)(20).3 “[T]he . . .
    appropriate source of applicable Florida law would be that surrounding Florida’s
    own unlawful possession of firearms by a felon statute, Fla. Stat. Ann. § 790.23.”
    United States v. Chubbuck, 
    252 F.3d 1300
    , 1304 (11th Cir. 2001). Thus, the
    question before this Court is whether Florida treats a guilty plea with adjudication
    withheld as a “conviction” for purposes of section 790.23, Florida Statutes.
    3. The federal law, 18 U.S.C. § 921(a)(20), further provides that “[a]ny
    conviction which has been expunged, or set aside or for which a person has been
    pardoned or has had civil rights restored shall not be considered a conviction for
    purposes of this chapter, unless such pardon, expungement, or restoration of civil
    rights expressly provides that the person may not ship, transport, possess, or
    receive firearms.” 18 U.S.C. § 921(a)(20).
    -4-
    The Eleventh Circuit concluded that the Florida Supreme Court has not
    squarely addressed this issue, but noted that in State v. McFadden, 
    772 So. 2d 1209
    (Fla. 2000), in a different context, this Court adopted a definition of “conviction”
    that requires an adjudication of guilt or judgment of conviction by the trial court.
    
    Clarke, 780 F.3d at 1132
    . The Eleventh Circuit also explained that in McFadden,
    this Court relied on its opinion in State v. Snyder, 
    673 So. 2d 9
    (Fla. 1996), where
    we “noted that Florida’s felon-in-possession law ‘applies “following an
    adjudication of guilt in the trial court.” ’ ” 
    Clarke, 780 F.3d at 1132
    (quoting
    
    McFadden, 772 So. 2d at 1215
    n.5 (quoting 
    Snyder, 673 So. 2d at 10
    )). The
    Eleventh Circuit also recognized that Florida’s Second and Third District Courts of
    Appeal have held that, for purposes of section 790.23, Florida Statutes, a
    conviction requires adjudication. 
    Clarke, 780 F.3d at 1132
    -33 (citing Castillo v.
    State, 
    590 So. 2d 458
    , 461 (Fla. 3d DCA 1991), and State v. Menuto, 
    912 So. 2d 603
    , 605-06 (Fla. 2d DCA 2005)).
    The reason the Eleventh Circuit certified the question in the instant case was
    further explained as follows:
    Ordinarily, this suggestion from the Florida Supreme Court that
    a withheld adjudication is insufficient, along with on-point Florida
    District Courts of Appeal rulings that confirm the suggestion, would
    be enough for us to find that Jenkins’s prior crime was not a
    conviction under § 922(g). Indeed, we have previously said that “[i]n
    matters of state law, federal courts are bound by the rulings of the
    state’s highest court. If the state’s highest court has not ruled on the
    issue, a federal court must look to the intermediate state appellate
    -5-
    courts.” Veale v. Citibank, F.S.B., 
    85 F.3d 577
    , 580 (11th Cir. 1996)
    (citation omitted). But the difficulty for us in this case is that this
    Circuit has held the opposite in at least two earlier cases. In United
    States v. Orellanes, 
    809 F.2d 1526
    (11th Cir. 1987), we said that “one
    who pleads guilty in a Florida state court and has imposition of
    sentence withheld, may nevertheless be held to have been ‘convicted’
    for purposes of applying federal criminal statutes which punish certain
    conduct following conviction of a felony.” 
    Id. at 1527.
    We affirmed
    that holding in United States v. Grinkiewicz, 
    873 F.2d 253
    (11th Cir.
    1989) (per curiam).
    Thus, we find ourselves facing conflicting commands. On the
    one hand, our prior-precedent rule demands that we follow our prior
    decisions on this matter. See 
    Chubbuck, 252 F.3d at 1305
    n.7 (“We
    are not at liberty to disregard binding case law that is so closely on
    point that has been only weakened, rather than directly overruled, by
    the [Florida] Supreme Court.” (alteration adopted) (quoting Fla.
    League of Prof’l Lobbyists v. Meggs, 
    87 F.3d 457
    , 462 (11th Cir.
    1996))). On the other hand, although the Florida Supreme Court has
    not directly addressed the point, indications from that Court suggest
    that our holdings in Orellanes and Grinkiewicz are no longer in
    keeping with Florida law. At least two lower appellate courts in
    Florida confirm this interpretation. We have noted in a case
    addressing this same issue: “It has become increasingly clear that
    perhaps our interpretation of Florida law was either in error or has
    since changed.” 
    Chubbuck, 252 F.3d at 1305
    .
    
    Clarke, 780 F.3d at 1133
    . With this background in mind, we turn to determination
    of the certified question before us.
    ANALYSIS
    As the Eleventh Circuit has explained, that court is bound to follow its own
    precedent. 
    Chubbuck, 252 F.3d at 1305
    . In 2001, relying on its prior decisions in
    United States v. Orellanes, 
    809 F.2d 1526
    (11th Cir. 1987), and United States v.
    Grinkiewicz, 
    873 F.2d 253
    (11th Cir. 1989), the Eleventh Circuit held in Chubbuck
    -6-
    that the district court did not err in finding that a charge of felon-in-possession
    under 18 U.S.C. § 922(g) could be proven where the defendant pled guilty to a
    felony even though adjudication was withheld. 
    Chubbuck, 252 F.3d at 1305
    .
    However, the Eleventh Circuit cautioned in Chubbuck that “[i]t has become
    increasingly clear that perhaps our interpretation of Florida law was either in error
    or has since changed, but given the defendant’s failure to object and without any
    definitive authority from the Florida Supreme Court that contradicts our precedent,
    we decline to, and in fact cannot, find that the district court committed plain error.”
    
    Chubbuck, 252 F.3d at 1305
    . In a footnote in Chubbuck, the court explained that
    under its precedent, a panel cannot overrule “a prior [panel’s] holding even though
    convinced it is wrong.” 
    Id. at n.7
    (quoting U.S. v. Steele, 
    147 F.3d 1316
    , 1317-18
    (11th Cir. 1998) (en banc)). The Eleventh Circuit stated, however, that “the prior
    precedent rule would not apply if intervening on-point case law from either this
    Court [the Eleventh Circuit] en banc, the United States Supreme Court, or the
    Florida Supreme Court existed.” 
    Id. at n.7
    (bracketed material added).
    Again, in the present case, the Eleventh Circuit has expressed its doubts
    about whether this Court holds that “conviction,” for purposes of section
    790.23(1), can be proven where adjudication was withheld as to the prior felony
    offense. The Eleventh Circuit stated, “On the other hand, although the Florida
    Supreme Court has not directly addressed the point, indications from that Court
    -7-
    suggest that our holdings in Orellanes and Grinkiewicz are no longer in keeping
    with Florida law.” 
    Clarke, 780 F.3d at 1133
    . In deciding Orellanes, where it held
    that under Florida law the term “conviction” means a determination of guilt and
    does not require an adjudication by the Court for prosecution under 18 U.S.C.
    § 922(g), the Eleventh Circuit relied on this Court’s decision in State v. Gazda, 
    257 So. 2d 242
    (Fla. 1971).
    In Gazda, we held in a different context that “for purposes of construing
    § 775.14 . . . the term ‘conviction’ means determination of guilt by verdict of the
    jury or by plea of guilty, and does not require adjudication by the court.” 
    Gazda, 257 So. 2d at 243-44
    . Section 775.14 dealt with a statutory limitation on the
    ability of the state to sentence a defendant for a conviction of the same crime for
    which sentence had been earlier withheld and not altered for five years. However,
    in Gazda, adjudication was not withheld pursuant to section 948.01, Florida
    Statutes, as it was in Jenkins’ case, but was simply postponed while the defendant
    was sent for medical treatment.4 Later, in Grinkiewicz, the Eleventh Circuit relied
    on its prior decision in Orellanes to reach the same conclusion that “conviction”
    4. In Gazda, the trial court postponed adjudication and sentencing pending a
    presentence investigation. Shortly thereafter, the defendant was remanded for
    medical treatment at the Southwest Florida Tuberculosis Hospital. Gazda, 
    257 So. 2d
    at 243. The defendant never returned from the state hospital for adjudication
    and sentencing. 
    Id. -8- does
    not require an adjudication of guilt. 
    Grinkiewicz, 873 F.2d at 255
    (citing
    Orellanes as binding precedent on the question of whether under Florida law a
    person is considered a felon even when there has been a withholding of
    adjudication of guilt).
    As noted above, the Eleventh Circuit in the instant case is concerned that
    this Court may hold that a conviction—for purposes of section 790.23(1), Florida’s
    “felon-in-possession” statute—does require an adjudication of guilt. The Eleventh
    Circuit cited this Court’s decision in State v. McFadden, 
    772 So. 2d 1209
    (Fla.
    2000), in which we adopted a definition of “conviction” that requires an
    adjudication in the context of use of a prior conviction in impeaching a witness.
    We stated in McFadden that “where the trial court withholds adjudication of guilt
    as authorized by statute,” a prior crime is not a “conviction” for purposes of
    impeachment under the Florida Evidence Code. 
    McFadden, 772 So. 2d at 1216
    .
    In interpreting section 90.610(1), Florida Statutes (1997), the statute at issue
    in McFadden, we stated:
    In the absence of a definition of “conviction” in section
    90.610(1), it is appropriate to resort to prior case law. See State v.
    Mitro, 
    700 So. 2d 643
    , 645 (Fla. 1997). Defining “conviction” to
    require the adjudication of guilt is consistent with this Court’s
    jurisprudence. Before the enactment of the Florida Evidence Code in
    1976, this Court on several occasions had defined the term
    “conviction” as encompassing a guilty plea or verdict of guilty along
    with a judgment by the court. Over one hundred years ago, this Court
    in Barnes observed that in its “ordinary sense,” the term “ ‘conviction’
    means the ascertainment of the guilt of a party, either by a plea of
    -9-
    guilty, or by the verdict of a jury.” State ex rel. Owens v. Barnes, 
    24 Fla. 153
    , 157, 
    4 So. 560
    , 561 (1888). However, the Court recognized
    that “numerous authorities” held that a “judgment or sentence [was] a
    necessary component part of ‘conviction.’ ” 
    Id. Thus, for
    purposes of
    construing the term “conviction” as used in a statute dealing with
    “conviction fees,” the Court used a definition of conviction that
    included the judgment and sentence of the court. 
    Id. at 161,
    4 So. at
    562.
    Similarly, this Court once again addressed the definition of
    “convicted” in the case of Smith v. State, 
    75 Fla. 468
    , 473, 
    78 So. 530
    , 532 (1918), where the Court construed the term as used in a
    statute prohibiting the selling of intoxicating liquors to minors.
    According to this Court, “The meaning of the word ‘convicted’ as
    used in the statute . . . means the adjudication by the court of the
    defendant’s guilt.” 
    Id. As we
    stated in Smith:
    This court has so often expressed the opinion that
    the word “conviction” includes the judgment of the court,
    as well as a plea or verdict of guilty, that such definition
    of the word as used in the statute or plea invoked to
    describe the effect of a former conviction in a subsequent
    case may be said to be firmly 
    established. 75 Fla. at 475
    , 78 So. at 532 (emphasis supplied).
    ....
    For purposes of impeaching a witness with a prior conviction
    under section 90.610(1), however, we find no basis to deviate from
    the definition of conviction most consistently used by this Court,
    which requires a judgment of the court adjudicating the defendant
    guilty.
    
    McFadden, 772 So. 2d at 1214-16
    . In this statement, we recognized the existence
    of a longstanding, consistent definition of “conviction” that requires an
    adjudication. Examples of our longstanding, consistent interpretation of the term
    “conviction” as requiring adjudication include State v. Barnes, 
    4 So. 560
    , 561 (Fla.
    1888) (explaining that although some definitions allow a finding of guilt to
    - 10 -
    constitute a conviction, “numerous authorities [] hold the judgment or sentence to
    be a necessary component part of ‘conviction’ ”); Smith v. State, 
    78 So. 530
    , 532
    (Fla. 1918) (holding that where “conviction” is an element of the offense, “[t]he
    meaning of the word ‘convicted’ as used in the statute . . . means the adjudication
    by the court of the defendant’s guilt”); Timmons v. State, 
    119 So. 393
    , 394 (Fla.
    1929) (“The word ‘convicted’ as used in the indictment against the defendant,
    under the statute [for unlawful possession of liquor] . . . means that the defendant
    had been formally adjudged to be guilty by the county judge’s court of Marion
    County.”); Weathers v. State, 
    56 So. 2d 536
    , 538 (Fla. 1952) (holding that
    “conviction” occurs when the jury returns a verdict of guilty and the judge
    “clinches the finding” by adjudicating the defendant’s guilt); Delta Truck Brokers,
    Inc. v. King, 
    142 So. 2d 273
    , 275 (Fla. 1962) (“The term ‘conviction’ has an
    accepted meaning in applying statutes of this nature [an auto transportation
    brokerage license statute]. It simply means a determination of guilt and a
    judgment of guilt by a court of competent jurisdiction in a criminal proceeding.”
    (bracketed material added)).
    And, as the Eleventh Circuit noted in the instant case, Florida’s Second
    District Court of Appeal and Third District Court of Appeal have held that for
    prosecution under section 790.23, Florida Statutes, an adjudication is required.
    The Third District in Castillo v. State, 
    590 So. 2d 458
    (Fla. 3d DCA 1991), which
    - 11 -
    predated McFadden, held that for prosecution under section 790.23 “we construe
    ‘conviction’ to mean an adjudication of guilt. . . . Where adjudication has been
    withheld, the offender is not a convicted felon.” 
    Id. at 461
    (citations omitted).
    And, in State v. Menuto, 
    912 So. 2d 603
    (Fla. 2d DCA 2005), the Second District
    relied on Castillo to hold that for purposes of section 790.23(1)(a), “ ‘conviction’
    means ‘adjudication of guilt’—a mere withhold of adjudication of guilt of the prior
    offense will not suffice.” 
    Menuto, 912 So. 2d at 605-06
    (citing Malcom v. State,
    
    605 So. 2d 945
    , 948 (Fla. 3d DCA 1992) (holding that defendant was never
    convicted of a felony for purposes of section 790.23 because he pled guilty and
    adjudication was withheld)).
    In McFadden, we acknowledged that some statutes have been held not to
    require adjudication to constitute a “conviction.” We explained:
    [W]hen we have defined “conviction” as encompassing only a guilty
    plea or guilty verdict, we have done so in relation to a specific statute
    and its specific purpose as set forth by the Legislature. As we recently
    recognized in Raulerson v. State, 
    763 So. 2d 285
    (Fla. 2000), although
    an adjudication of guilt is generally required for there to be a
    “conviction,” that term as used in Florida law is a “ ‘chameleon-like’
    term that has drawn its meaning from the particular statutory context
    in which the term is used.” 
    Id. at 291
    (quoting State v. Keirn, 
    720 So. 2d
    1085, 1086 (Fla. 4th DCA 1998)).
    
    McFadden, 772 So. 2d at 1215
    (emphasis added). The government points to a
    number of statutes that provide a definition of “conviction” or “convicted” to
    expressly include determinations of guilt for which adjudication was withheld.
    - 12 -
    See, e.g., § 112.3173, Fla. Stat. (regarding felonies involving breach of public trust,
    etc., which expressly includes a determination of guilt when adjudication is
    withheld in the definition of conviction); § 775.13(1), Fla. Stat. (defining
    “convicted” to mean determination of guilt “regardless of whether adjudication is
    withheld,” for purpose of registering as a felon); § 775.084, Fla. Stat. (regarding
    sentence enhancement for habitual felony offenders, which expressly treats
    probation or community control without an adjudication of guilt as a prior
    conviction); and § 943.0435(1)(b), Fla. Stat. (defining “convicted” to include a
    determination of guilt regardless of whether adjudication is withheld, for purpose
    of sex offender registration). The Fifth District in Clinger v. State, 
    533 So. 2d 315
    ,
    316 (Fla. 5th DCA 1988), also recognized that “for some limited purposes”
    conviction means determination of guilt, regardless of whether adjudication was
    withheld. One of those “limited purposes” described by Clinger is for the purpose
    of sentencing under Florida Rule of Criminal Procedure 3.701(d)(2), titled
    “Sentencing Guidelines,” which currently defines “conviction” as a determination
    of guilt resulting from a plea or trial, regardless of whether adjudication was
    withheld. See Fla. R. Crim. P. 3.701(d)(2). The significant factor concerning the
    above-cited statutes and rule is that they do expressly include withheld
    adjudications as convictions for purposes of the statute or rule. Notably, section
    790.23, at issue in this case, does not expressly include withheld adjudications
    - 13 -
    within the definition of conviction of a felony for purposes of the “felon-in-
    possession” offense.
    As the Fourth District in State v. Keirn explained, “[i]n Florida law,
    ‘conviction’ is a chameleon-like term which draws its meaning from its statutory
    context,” and that “[w]here the statutory context requires it, the term ‘conviction’
    has been construed broadly to include dispositions where there has been no
    adjudication of guilt.” 
    720 So. 2d
    1085 (Fla. 4th DCA 1998), approved sub nom.
    Raulerson v. State, 
    763 So. 2d 285
    (Fla. 2000). Keirn concluded that “proper
    construction of the term ‘conviction’ requires a close examination of its statutory
    context and legislative history and development.” 
    Id. at 1088.
    In construing the
    statute at issue in McFadden, in light of the “chameleon-like” nature of the term
    “conviction,” we looked to the purpose of the statute at issue. We concluded in
    McFadden that an adjudication of guilt is required to constitute a “conviction” for
    purposes of impeachment under the evidence code because if the witness has a
    criminal record, it could affect the witness’s 
    credibility. 722 So. 2d at 1216
    . We
    also concluded in McFadden that “it is the adjudication of guilt or the judgment of
    conviction that becomes essential to utilizing a prior crime as a ‘conviction’ to
    challenge a testifying witness’s present credibility.” 
    Id. Because the
    meaning of “conviction,” if not expressly stated in the statute,
    will turn on the intent and purpose of the statute at issue, we will consider the
    - 14 -
    statute as a whole, including the evil to be corrected, in endeavoring to ascertain
    that purpose. See, e.g., McKibben v. Mallory, 
    293 So. 2d 48
    , 52 (Fla. 1974). For
    example, we held in McCrae v. State, 
    395 So. 2d 1145
    , 1154 (Fla. 1980), that a
    guilty plea, or verdict of guilty, prior to adjudication and sentencing, constituted a
    “conviction” for purposes of section 921.141(5)(b), Florida Statutes (1975),
    governing aggravating circumstances in capital sentencing proceedings. We found
    it proper to allow evidence of McCrae’s guilty plea to assault with intent to commit
    murder as a prior violent felony conviction which constituted an aggravating factor
    in capital sentencing5 because it “was so intended by the [L]egislature.” 
    Id. at 1154.
    This conclusion was based in large part on the fact that in determining if a
    death sentence should be imposed, a court must consider the circumstances set
    forth in section 921.141, Florida Statutes, which will aid the judge in “establishing
    the overall character analysis of a defendant so that he [or she] may properly
    determine the appropriate sentence.” 
    Id. We stated,
    “Given the purpose of this
    process, it is illogical that a plea of guilty to a serious offense involving violence
    that is disposed of by a sentence that includes a withholding of adjudication of
    guilt should be treated differently than a plea of guilty with court adjudication.”
    
    Id. 5. Section
    921.141(5)(b), Florida Statutes (1975).
    - 15 -
    In looking to the purpose of section 790.23(1)(a), and the evil to be corrected
    by that provision, we held in 1967 that section 790.23, prohibiting convicted felons
    from possessing firearms, is a reasonable public safeguard “intended to protect the
    public by preventing the possession of firearms by persons who, because of their
    past conduct, have demonstrated unfitness to be entrusted with such dangerous
    instrumentalities.” State v. Snyder, 
    673 So. 2d 9
    , 10 (Fla. 1996) (citing Nelson v.
    State, 
    195 So. 2d 853
    , 855 & n.8 (Fla. 1967)). However, when a defendant, such
    as Jenkins in this case, has his or her adjudication withheld, it is because the trial
    court has found that the defendant is not likely to engage in further criminal
    conduct and that justice and the welfare of society do not require that the defendant
    suffer the penalty imposed by law. See § 948.01(2), Fla. Stat. (2008).
    Section 948.01, titled “When court may place defendant on probation or into
    community control,” states in pertinent part in subsection (2):
    (2) If it appears to the court upon a hearing of the matter that
    the defendant is not likely again to engage in a criminal course of
    conduct and that the ends of justice and the welfare of society do not
    require that the defendant presently suffer the penalty imposed by law,
    the court, in its discretion, may either adjudge the defendant to be
    guilty or stay and withhold the adjudication of guilt; and, in either
    case, it shall stay and withhold the imposition of sentence upon such
    defendant and shall place the defendant upon probation.
    - 16 -
    § 948.01(2), Fla. Stat. (2008).6 The government urges that this provision only
    grants the trial court discretion to withhold adjudication in order for the defendant
    to avoid a sentence of imprisonment. However, there are other penalties imposed
    by law on those persons who have been convicted of a felony. For instance,
    section 790.065, Florida Statutes (2015), governs sale and delivery of firearms.
    Section 790.065(2)(a)1. provides that upon receipt of a request for a criminal
    history check, the Florida Department of Law Enforcement shall review records to
    determine if the potential buyer “[h]as been convicted of a felony and is prohibited
    from receipt or possession of a firearm pursuant to s. 790.23.” However, in that
    same statute, section 790.065(2)(a)3. states that such a records review should
    determine if the buyer “[h]as had adjudication of guilt withheld or imposition of
    sentence suspended on any felony . . . .” Additionally, there is precedent to find
    that the purpose of withholding adjudication is rehabilitative, to avoid “damning
    consequences,” and so that the defendant does not lose his or her civil rights. We
    explained in Peters v. State, 
    984 So. 2d 1227
    (Fla. 2008), that “[t]he purpose of the
    granting of probation . . . without an actual adjudication of guilt, is rehabilitation of
    one who has committed the crime charged without formally and judicially
    branding the individual as a convicted criminal and without the loss of civil rights
    6. Similar language occurs in the current version of the statute. See
    § 948.01(2), Fla. Stat. (2015).
    - 17 -
    and other damning consequences.” 
    Id. at 1231
    (quoting Bernhardt v. State, 
    288 So. 2d 490
    , 495 (Fla. 1974)); see also Lopez v. State, 
    509 So. 2d 1334
    , 1335 n.4
    (Fla. 3d DCA 1987) (concluding that the purpose of allowing the trial court to
    place a defendant on probation after he or she is found guilty after a plea or trial,
    without entering a formal judgment of conviction, is rehabilitative, and if the
    defendant completes his probationary period, he will not be a “convicted criminal
    with consequent loss of civil rights . . . .”).
    As we made clear in McFadden, “where the trial court withholds
    adjudication of guilt as authorized by statute and ‘stay[s] and withhold[s] the
    imposition of sentence,’ the court has found that ‘the defendant is not likely again
    to engage in a criminal course of conduct.’ ” 
    McFadden, 772 So. 2d at 1216
    (quoting § 948.01(2), Fla. Stat. (1997)). Because section 790.23(1) is intended to
    keep firearms out of the hands of persons who are dangerous or who might
    reoffend, that purpose is not served where the trial court has explicitly determined
    that the defendant is not a danger and is not likely to reoffend—thus withholding
    adjudication under section 948.01 as was done in this case. The text of section
    790.23(1)(a) does not state that the statute applies notwithstanding the fact that
    adjudication was withheld. Thus, we adhere to our longstanding, consistent
    definition of “conviction” to require an adjudication by the court, and conclude that
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    proof of a felony conviction for the purpose of prosecution of an offense under
    section 790.23(1) requires proof of an adjudication of guilt.
    CONCLUSION
    For the reasons explained above, we answer the certified question posed by
    the Eleventh Circuit Court of Appeals in the negative and hold that for purposes of
    section 790.23(1), a guilty plea for a felony for which adjudication was withheld
    does not qualify as a “conviction” under that statute. Having answered the
    certified question, we return this case to the Eleventh Circuit Court of Appeals.
    It is so ordered.
    PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ.,
    concur.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION,
    AND IF FILED, DETERMINED.
    Certified Question of Law from the United States Court of Appeals for the
    Eleventh Circuit - Case No. 13-15874
    Michael Caruso, Federal Public Defender, and Tracy Michele Dreispul, Assistant
    Federal Public Defender, Miami, Florida,
    for Appellant Bobby Jenkins
    Wifredo Antonio Ferrer, United States Attorney, Emily M. Smachetti, Chief,
    Appellate Division, Lisette Marie Reid, Assistant United States Attorney, and Amit
    Agarwal, Assistant United States Attorney, Miami, Florida,
    for Appellee
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