Convictions, like the diamond pitch, last forever.[i] Typically, a conviction is the result of a plea or trial in a criminal case that results in a judgment and/or sentence that the defendant is guilty as charged.[ii] For the most part, convictions are final and permanent after the appellate period. In other words, once you are convicted and the appellate period have expired – – you are a convicted (whether it is a misdemeanor or felony). The law craves finality – otherwise there would be complete chaos in the system if a person’s conviction was not final at some point (contrary to popular belief that people’s cases linger on and on with endless appeals – which is not the case by any stretch of the imagination).
Generally, outside of the rarest situation, if you are convicted of a felony, then you will live with the conviction for the rest of your life. Period.[iii] At common law, a felony was an offense that was punishable by imprisonment for more than one year. As such it is of vital importance that you understand the rights and privileges you will give up, waive, or otherwise lose as a convicted felon (whether the conviction comes by guilty verdict or plea bargain).
The law treats these as direct consequences and treats collateral consequences completely differently. Collateral in this instance means “additional but subordinate; secondary” or “indirect.”[iv] Historically, many of the collateral consequences grew up over time as unintended consequences. Their impact is harsh, nonetheless.
Usually, the direct consequences of the conviction usually refers to the judgment and sentence, prison versus probation (or both), fees and fines, restitution to the victim and so on. On the other hand, collateral consequences are the “… are legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.”[v] Often, the collateral consequences are what haunts the person convicted for the rest of their lives (and unfortunately there is no “reset” or “do-over” button.)
The only constitutional rights that people lose in terms of a felony conviction is the right to carry and possess a firearm. As most Americans understand, the Second Amendment guarantees a person the right to bear arms.[vi] To what extent of that right means remains to be decided by the United States Supreme Court. This is considered a collateral right.[vii]
Many states and the federal government have “felon in possession (of a firearm)” charges that carry hefty criminal sentences (usually with mandatory minimums). Surprisingly, none of these collateral prohibitions are ever discussed with the defendant prior to a trial and/or during a plea colloquy.[viii] This is a collateral versus a direct right.
In many states, the law does not distinguish between a non-violent versus violent felony. For instance, in Florida, if you are convicted of failure to redeliver leased property (from a furniture rental place), then you cannot possess a firearm. Or if you are convicted of felony driving on a suspended license, then you may not possess a firearm in Florida. In fact, any felony conviction makes it illegal to possess a firearm. Florida makes the felon in possession of a firearm felony so serious that it made it a second-degree felony punishable by up to fifteen years in the Florida State Prison (with a 3-year minimum mandatory sentence if you are in actual possession). Additionally, it is a federal offense for anyone to knowingly possess a firearm if they are a convicted of a felony.[ix]
There is a myth that some people in Florida think that you can get your conviction sealed or expunged.[x] The problem is that the statutes concerning this process refer to being allowed to seal or expunge a non-conviction in terms of your criminal record. Usually, convictions may not be sealed or expunged if you were convicted. This goes back to what I indicated above – the conviction is usually forever.
Keep in mind, the Sixth Amendment outlines a person’s constitutional criminal rights. It reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1789) There are many rights constitutional criminal contained within this amendment. These rights may have meant something different to the colonists at the time of the ratification of the “Bill of Rights.” One of the rights (as interpreted) is the right to “effective assistance of counsel.”[xi] The right is not outlined or explained anywhere in the “Bill of Rights” or the constitution.
As it stands, the Sixth Amendment analysis (under the “effective assistance of counsel”) only requires that the attorney representing a client (and the trial court) to outline and explain the direct consequences of a conviction (or plea). While it is subject to change, explanation of collateral consequences has never been required by the United States Supreme Court.[xii]
It seems apparent to any casual observer why it is super important to explain all the direct and collateral consequences of a conviction (or plea) to a client. Nevertheless, this is not the law of the land. As a result, many clients are never fully advised of various collateral consequences of their conviction.
While the direct consequences may seem self-evident for the most part, the collateral consequences are not always obvious and in the fore. In some instances, are downright insidious as to their creation. Nevertheless, I cannot tell you how many times various potential clients have contacted me about this very problem. These people (who I did not originally represent) contact me many years after their conviction and ask me is there a legal way for them to get out from underneath their conviction? Or there a way to revisit their conviction because no one explained these problems to them before they resolved their case? Putting aside whether the person was properly advised or not of the collateral consequences, the answer is usually an unfortunate “no.”[xiii]
If you or a loved one is currently facing criminal charges, then make sure that the attorney explains everything to you in such a way that you understand the difficult decisions you may be making as you make your way through the criminal justice system. And if you are not getting the answers you can understand, then contact another attorney.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 21-015 Direct v. Collateral Consequences
[i] Mary Frances Gerety was the copywriter responsible for the “A Diamond is Forever” slogan created for De Beers Consolidated Mines, Ltd. https://en.wikipedia.org/wiki/Mary_Frances_Gerety
[ii] https://thelawdictionary.org/conviction/
[iii] While there are some states that allow relief (sealing/expunging) felony convictions, the broad majority do not. See Restoration of Rights Project at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/
[iv] https://www.merriam-webster.com/dictionary/collateral
[v] https://niccc.nationalreentryresourcecenter.org/#:~:text=What%20are%20collateral%20consequences%3F,rights%2C%20benefits%2C%20and%20opportunities.
[vi] See District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)
[vii] The author is a not a gun enthusiast by any stretch of the imagination. Further, the author understands and appreciates that the government might have compelling state/federal interest in regulating the possession of firearms by felons. Here is something to ponder, however, convicted felon does not lose any of his or her first amendment rights (to religion, to gather, to speak, to print…etc.), or his or her Third Amendment right to not have troops quartered at his or her house, or his or her Fourth Amendment right to be free from unreasonable searches or seizures, or his or her Fifth Amendment right to remain silent, due process, or equitable domain, or his or her Sixth Amendment constitutional criminal rights, or his or her Seventh Amendment right to bring a federal lawsuit, or his or her Eighth Amendment right to bail, freedom from excessive fines, and to be free from cruel and unusual punishment, and/or his or her Fourteenth Amendment rights to “due process” and “equal protection” of the law incorporated against the several states. Only the Second Amendment is restricted in this instance. While the felony has historically been a mark against someone in the past, there are so many felonies (both serious and silly) on the books across this country that the felony offense has lost its seriousness as a meaningful demarcation. In this light, consider bankruptcy. Bankruptcy is a constitutional right. It used to be a mark against someone and unthinkable to have a bankruptcy on your record. Nowadays, various individuals, corporations, and businesses have multiple bankruptcies and use this right to get a fresh start, to get out from unreasonable debt (often made by bad financial decisions), and to begin borrowing money again. After several months, credit agencies and lenders often discount the bankruptcy. Times change. Maybe it is time to rethink the felony conviction as well (but that is for another blog post).
[viii] A plea colloquy is a fancy term for the discussion between the judge and the defendant during the plea hearing whereby the judge discusses the defendant’s constitutional criminal rights (the direct rights) to ensure that the defendant is apprised of his constitutional criminal rights. It is part of the trial judge’s responsibility to satisfy the record for review that the defendant “knowingly, voluntarily, and intelligently” waived these rights or exercised these rights at a trial.
[ix] If you possess a firearm as a convicted felon anywhere in the United States or any territory subject to the jurisdiction of the United States, then you could be indicted and facing up to ten (10) years in federal prison. Essentially, if your state does not have a state law that prohibits possession of a firearm by a felon, you still cannot possess a firearm as a felon because you can be tried in federal court. Here is a double whammy – – if your state has a felon in possession law and you are convicted of that felony, you could also be tried in federal court and receive a consecutive sentence.
[x] See § 943.0585 and 943.059, Fla. Stat.
[xi] See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984).
[xii] Again, this is not as “cut and dry” as it might seem on its face. According to the United States Supreme Court, deportation and exclusion from the United States for non-citizens is a direct and not collateral consequence of a conviction. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). See Justice Alito’s concurrence (however, the concurrence is not the decision or the law on this matter – only additional guidance like a unsolicited suggestion).
[xiii] The answer is much more complicated than a simple “no” and relies upon several factors that are not relevant for this blog article. In some exceedingly rare instances, there may be a way to undo a conviction. Again, this is a rarest of exceptions and not generally available for most people’s “run of the mill” convictions. Further, this is not a monetary thing where you can pay some exorbitant amount of money to get a better result. It is not like that. It is a matter of extremely thorough case review with the finest of combs to find a previously unknown and unknowable constitutional error that may have occurred that everyone missed (and the newly found constitutional error must necessarily be outside the prescribed time frames which typically bar and forbid such reviews which then requires further legal acrobatics and precedent juggling to get the matter heard thus making the degree of difficulty off the charts (think the “Triple Lindy” from the movie “Back to School” on a weeklong sugar high degree of difficulty if you are scoring at home.)