Florida pleas
The most common Florida disposition, a plea with adjudication withheld, is not a conviction under Florida law and is a conviction under immigration law. That one fact decides most Florida plea reviews. The rest of the system follows the same pattern: a first-degree misdemeanor with a one-year maximum, a nolo contendere plea that counts the same as guilty, a drug statute with no knowledge element, and a two-year window to undo a plea. This page describes the structure. What each category of offense does to your status is on the grounds pages.
Current as of October 2026. We re-check this page regularly and after any rule change.
This page describes Florida's sentencing structure, its dispositions, the advisal the court gives before a plea, and the motion that undoes one. It does not say which Florida offenses are crimes involving moral turpitude, aggravated felonies or controlled-substance offenses. Those are questions about the elements of each statute, decided under the categorical approach in the Eleventh Circuit, so the answer has to come from reading your statute. The federal grounds a Florida plea is measured against are on the crimes and removal page.
A withhold of adjudication is a conviction
Under Fla. Stat. 948.01, a Florida court can accept a plea, place the defendant on probation, and withhold adjudication of guilt. Under Florida law the defendant is not convicted. Under INA 101(a)(48)(A), the defendant is. The federal definition has two halves for exactly this situation: where adjudication of guilt has been withheld, a conviction exists if
- a judge or jury found the person guilty, or the person entered a plea of guilty or nolo contendere, or admitted sufficient facts to warrant a finding of guilt; and
- the judge ordered some form of punishment, penalty or restraint on liberty.
A withhold after a plea, with probation, satisfies both. So does a withhold with a fine, a treatment program, community service or court costs imposed as a penalty. A nolo contendere plea is named in the definition and counts the same as a guilty plea. The later completion of probation does not undo it; under Matter of Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999), rehabilitative relief does not eliminate a conviction, and the Board applied the same two-part definition to a Texas deferred adjudication in Matter of Punu, 22 I&N Dec. 224 (BIA 1998).
"Withhold" is not "no conviction"
A plea offer described as "a withhold, so you will not have a conviction" is correct under Florida law and wrong under immigration law. Every ground of removal that requires a conviction is met by a withhold after a plea. Every bar to relief that requires a conviction is met by it. The disposition that stays outside the definition is one with no plea, no finding and no admission of sufficient facts, and that is a different negotiation. The deferred and withheld adjudication page goes through it.
The sentencing ladder
| Degree | Maximum sentence | Authority |
|---|---|---|
| Second-degree misdemeanor | 60 days | Fla. Stat. 775.082(4) |
| First-degree misdemeanor | 1 year | Fla. Stat. 775.082(4) |
| Third-degree felony | 5 years | Fla. Stat. 775.082(3) |
| Second-degree felony | 15 years | Fla. Stat. 775.082(3) |
First-degree felonies, life felonies and capital felonies are not listed here.
The immigration statute asks three questions of a sentence: what the maximum was, what was imposed, and whether the term was at least one year. Florida's ladder answers the first. A second-degree misdemeanor cannot carry more than 60 days, which keeps it inside the sentence prong of the petty offense exception and outside every one-year threshold. A first-degree misdemeanor carries up to one year, and that is where the negotiation lives.
The 364-day request on a first-degree misdemeanor
Because the maximum is one year, a first-degree misdemeanor sentence of one year is available, and one year is the threshold in the aggravated felony entries for theft and receipt of stolen property, crimes of violence, forgery and obstruction, INA 101(a)(43)(F), (G), (R) and (S). Under INA 101(a)(48)(B) a suspended sentence counts in full, so a year of jail suspended in favor of probation is still a year. A sentence of 364 days is below the threshold. It also keeps a single crime involving moral turpitude outside INA 236(c)(1)(C), the mandatory detention paragraph that requires a sentence of at least one year for an admitted person, and it preserves the bond hearing.
Two things 364 days does not do, on the text of the statutes. The single-CIMT deportability ground in INA 237(a)(2)(A)(i) asks whether a sentence of one year or longer "may be imposed," and a first-degree misdemeanor's one-year maximum answers that question on the maximum alone, whatever sentence was actually imposed; for a person admitted within the last five years, the sentence does not take a first-degree misdemeanor CIMT out of that ground. And the petty offense exception in INA 212(a)(2)(A)(ii)(II) requires a sentence of six months or less, not 364 days, on top of a maximum that does not exceed one year; a first-degree misdemeanor satisfies the maximum prong, and the sentence has to be negotiated to six months to satisfy the other. The 364-day page and the petty offense page cover both.
The advisal before the plea
Fla. R. Crim. P. 3.172(c)(8) requires the court, before accepting a plea, to advise the defendant that if he or she is not a United States citizen the plea may subject him or her to deportation. The rule applies to pleas generally, not only felonies. A general warning from the bench is not the same thing as the advice your own lawyer owes you. Under Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must advise a noncitizen client of the immigration consequences of the plea, and silence or misadvice is deficient performance. Under Lee v. United States, 582 U.S. 357 (2017), prejudice can be shown where deportation was the determinative issue and the defendant would have rejected the plea even with little chance at trial. The Padilla page covers what the advice has to contain and why it should be in writing.
The drug statute and the categorical question
Fla. Stat. 893.101 provides that knowledge of the illicit nature of a controlled substance is not an element of a Florida drug offense. That matters to the immigration analysis because the categorical approach compares the elements of the state offense to the federal definition, and a state statute that lacks an element the federal definition requires is a statute the argument is made about. Whether a Florida drug conviction under a statute with no knowledge element matches the controlled-substance ground of removal or the illicit-trafficking aggravated felony is litigated. That turns on your statute and your record, so ask us before you plead.
The separate question that applies to every state drug plea applies here too. Under Mellouli v. Lynch, 575 U.S. 798 (2015), a state drug conviction is a controlled-substance offense for immigration purposes only if the substance is on the federal schedules, and a paraphernalia conviction that does not tie the paraphernalia to a federally controlled substance does not support the charge. The drug offenses page covers what to ask for in a drug plea.
Undoing a Florida plea: Rule 3.850
A motion for post-conviction relief in Florida is made under Fla. R. Crim. P. 3.850, and under Rule 3.850(b) it is generally due within two years after the judgment and sentence become final, with the exceptions the rule lists. Two years is the shortest window among New York, New Jersey and Florida. A withhold with probation starts the same clock as a judgment. A person whose first notice of the immigration problem is an ICE encounter three years after the plea is arguing an exception, not filing on time.
The ground most often available to a noncitizen is a plea entered without the advice Padilla requires. Under Chaidez v. United States, 568 U.S. 342 (2013), that ground does not reach a conviction that became final before March 31, 2010. And under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), a vacatur counts for immigration purposes only if it rests on a substantive or procedural defect in the original case; an order that says the plea was vacated to avoid immigration consequences leaves the conviction in place. The vacating a plea page covers what the motion has to prove, and the after a plea section explains how it runs alongside the immigration case.
Before the plea, the Florida negotiating points are the ones on the plea strategy pages with two local additions: the difference between a withhold after a plea and a disposition with no plea, and a sentence stated in days on any first-degree misdemeanor.
Using a Florida vacatur in a pending removal case and after an order: motions to terminate, motions to reopen, continuances and stays.
Post-conviction relief in removal proceedings →
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Read next: deferred and withheld adjudication, the 364-day sentence, drug offenses, or vacating a plea.
Common questions
The judge withheld adjudication. Do I have a conviction?
For immigration purposes, yes, if you entered a plea and the court imposed anything. INA 101(a)(48)(A) says that where adjudication of guilt has been withheld, a conviction exists if you pleaded guilty or nolo contendere, or admitted sufficient facts, and the judge ordered some form of punishment, penalty or restraint on liberty. A withhold under Fla. Stat. 948.01 after a plea, with probation, a fine or any other penalty, meets both halves of that definition. The fact that Florida does not treat it as a conviction does not change the federal answer.
Does a no contest plea help?
Not for the conviction question. INA 101(a)(48)(A) names a plea of nolo contendere alongside a plea of guilty. A nolo plea with a withhold and probation is a conviction on the same terms as a guilty plea. What you say in the plea colloquy can still matter for the record the immigration judge reads, which is covered on the record of conviction page.
Why do lawyers ask for 364 days on a Florida misdemeanor?
Because a first-degree misdemeanor carries a maximum of one year under Fla. Stat. 775.082, so a sentence of exactly one year is available, and one year is the threshold in the aggravated felony entries for theft, crimes of violence, forgery and obstruction. A suspended sentence counts in full under INA 101(a)(48)(B). A sentence of 364 days is under the threshold. It also keeps a single crime involving moral turpitude outside the mandatory detention paragraph in INA 236(c)(1)(C) for an admitted person.
How long do I have to challenge a Florida plea?
Generally two years after the judgment and sentence become final, under Fla. R. Crim. P. 3.850(b), with the exceptions the rule lists. The ground most often available to a noncitizen is a plea entered without the immigration advice Padilla v. Kentucky requires, and under Chaidez v. United States that ground is not available for a conviction final before March 31, 2010. A vacatur counts for immigration purposes only if it rests on a defect in the original case, under Matter of Pickering.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.