A deferred adjudication, also known in some jurisdictions as an adjournment in contemplation of dismissal (ACOD), probation before judgment (PBJ), or deferred entry of judgment (DEJ), is a form of plea deal available in various jurisdictions, where a defendant pleads "guilty" or "no contest" to criminal charges in exchange for meeting certain requirements laid out by the court within an allotted period of time also ordered by the court. Upon completion of the requirements, which may include probation, treatment, community service, some form of community supervision, or some other diversion program, the defendant may avoid a formal conviction on their record or have their case dismissed.[1] In some cases, an order of non-disclosure can be obtained, and sometimes a record can be expunged.
In a deferred adjudication, the criminal case that resulted in the deferred adjudication will often remain part of a permanent record. The extent to which the record of a deferral can be discovered or disclosed varies by jurisdiction. For example, even if not available to the general public, the record may remain visible to law enforcement and for some government background checks, such as enlistment in the military or employment with a government agency. Some jurisdictions allow for the record to be rendered inaccessible to the public or private-sector background checks.
Anyone offered deferred adjudication in exchange for a guilty plea should first consult their attorney regarding the exact consequences of doing so.
Criminal records after deferred adjudication
In some jurisdictions, defendants who have completed a deferred adjudication for a criminal charge may not be eligible for expungement of their criminal record, such that even though the charge was dismissed there remains a public record of their criminal prosecution. As no conviction was finalized, it may not be possible to remove this criminal record as might have been possible as a result of a pardon or clemency following a criminal conviction. For example, in the U.S. State of Texas, a defendant may obtain an expungement following a deferred disposition for a Class C misdemeanor,[2] but for any other deferred dispositions a defendant must obtain a pardon before the record may be expunged, although some defendants may be able to have their records sealed following a waiting period.[3]
United States
Maryland
In Maryland, deferred adjudication is called probation before judgment (PBJ). The conditions of this principle are set down in Title §6–220 of the state's Criminal Procedure article.[4] This law enables a judge to defer entering a judgment (that is, delay the entry of a "guilty" verdict) if the defendant pleads guilty or nolo contendere in writing, so long as certain conditions are met. Because the judgment is not entered as "guilty," a PBJ does not legally count as a conviction for a crime, and therefore the defendant is spared some hardships of having a criminal record, e.g. for purposes of job applications he or she does not have to disclose it as a conviction, though a full criminal background check will still reveal the case.[5]
The defendant, however, is still placed on probation and can be compelled to pay a monetary fine or other restitution, enroll in a drug rehabilitation program, work community service hours, and/or less frequently, sentenced to imprisonment or alternative confinement.[pageneeded] If the defendant carries out their sentence and behaves within the conditions of their probation (i.e. commits no further crimes), they become eligible for expungement three years after the judgment or when their probation ends, whichever is later (in some cases they can file early if they can show "good cause" to a judge). Expungement is not automatically requested; the defendant is responsible for filing for it at court once their time is up.[6]
The statute in Maryland regarding expungement (Md. Ann. Code, Crim. Proc. Art. 10-105(a)(3)) expressly excludes drunk driving charges (Md. Ann. Code, Transportation Article 21-902) where a PBJ is received. DUI charges cannot be expunged.
Maine
In Maine there are two types of deferred adjudications - “Filing Agreement” and “Deferred Disposition” - available to a defendant, but only if there is an agreement between the prosecutor and the defendant or defense counsel to resolve the criminal charges through deferred adjudication.
The first type of deferred adjudication is what is known as a “Filing Agreement”. Although there is no statutory authority in the Maine Revised Statues for a filing agreement, the basis and requirements for this type of disposition is found in Maine Rule of Criminal Procedure 11B, which reads as follows:
Rule 11B. Filing Agreements
(a) In General. The attorney for the state and the defendant may enter into a written filing agreement respecting a pending indictment, information or complaint. The filing agreement must establish a definite filing period of up to one year subject to the conditions, if any, set forth in the filing agreement. Upon execution of the agreement by the parties, the state shall file the agreement forthwith in the trial court and, upon such filing, the agreement will become effective.
(b) Court Approval Unnecessary. The approval of the court for the filing of a written filing agreement by the parties is unnecessary; however, a filing agreement is subject to the control of the court. If the agreement calls for the payment by the defendant of costs of prosecution such agreed-upon costs may be in any amount up to, but not exceeding, the maximum authorized fine amount for the particular crime based upon its sentencing class and need not reflect the actual costs of prosecution.
(c) Disposition During or at Expiration of Filing Period. Except where a filing agreement expressly provides otherwise as specified in subdivision (d), if the defendant has satisfied each of the filing agreement's conditions, if any, at the conclusion of the agreed upon filing period the defendant is entitled to have the filed indictment, information or complaint dismissed with prejudice. In this regard, unless the attorney for the state files a motion alleging a violation of one or more of the agreement's conditions by the defendant and seeking to have the criminal proceeding in which the indictment, information or complaint was filed reactivated by the court, at the expiration of the filing period the clerk shall enter a dismissal of the filed charging instrument with prejudice. In the event the attorney for the state files a motion during or at the end of the filing period alleging a violation of one or more of the agreement's conditions, the attorney for the state is entitled to have the criminal proceeding reactivated by the court if, following a hearing on the motion, the court finds by a preponderance of the evidence that the defendant has violated one or more of the agreement's conditions.
(d) Special Reservations in the Filing Agreement. If the attorney for the state wishes to preserve the right to reinitiate a criminal proceeding after the filing period has fully run when no breach of conditions has occurred, or to preserve the right to initiate the same or additional criminal charges against the defendant arising out of the same event or conduct in a separate criminal proceeding while the filing period is running, the attorney for the state must expressly reserve such a right in the written filing agreement and the defendant must expressly agree to it.[7]
As a practical matter, from the standpoint of a defendant in a criminal matter, a filing agreement is a very favorable means to resolve the case in that it does not require the defendant to enter a guilty plea or admit to conduct. Furthermore, the conditions on a filing agreement are typically less onerous on a defendant and in the event that the Defendant fails to abide by the conditions of the filing agreement, the State has to move the Court to restore the case back to the docket, which, if granted, affords the Defendant an opportunity to again fight the charges.
The second type of deferred adjudication in Maine is what is known as a “Deferred Disposition”. Unlike a filing agreement, there is statutory authority under 17-A M.R.S.A. § 1348 et. seq. for a deferred disposition. Furthermore, unlike a filing agreement, a deferred disposition requires the defendant to enter a plea of guilty in the matter before having the sentence deferred while the deferred disposition agreement is in effect. In Maine, a deferred disposition is only available for defendants charged with either a class E or D misdemeanor, or a class C felony. A deferred disposition is not available for juvenile matters or for class A or B felonies.[8]
In general, the requirements of deferred dispositions are controlled by 17-A M.R.S.A. § 1348-A, which reads as follows:
Deferred disposition
1. Following the acceptance of a plea of guilty for a crime for which a person is eligible for a deferred disposition under section 1348, the court may order sentencing deferred to a date certain or determinable and impose requirements upon the person, to be in effect during the period of deferment, considered by the court to be reasonable and appropriate to assist the person to lead a law-abiding life. The court-imposed deferment requirements must include a requirement that the person refrain from criminal conduct and may include a requirement that the person pay to the appropriate county an administrative supervision fee of not more than $50 per month, as determined by the court, for the term of the deferment. In determining the amount of the fee, the court shall take into account the financial resources of the person and the nature of the burden its payment imposes. In exchange for the deferred sentencing, the person shall abide by the court-imposed deferment requirements. Unless the court orders otherwise, the requirements are immediately in effect.
2. During the period of deferment and upon application of the person granted deferred disposition pursuant to subsection 1 or of the attorney for the State or upon the court's own motion, the court may, after a hearing upon notice to the attorney for the State and the person, modify the requirements imposed by the court, add further requirements or relieve the person of any requirement imposed by the court that, in the court's opinion, imposes an unreasonable burden on the person.
3. During the period of deferment, if the person cannot meet a deferment requirement imposed by the court, the person shall bring a motion pursuant to subsection 2.
4. For purposes of a deferred disposition, a person is deemed to have been convicted when the court imposes the sentence.[9]
The resolution of a deferred disposition is controlled by 17-A M.R.S.A. § 1348-B, which requires that the Court hold a sentencing hearing wherein the defendant has the burden by showing as a preponderance of the evidence that they have complied with the terms of the deferred disposition agreement. If the defendant can make such a showing then the Court will follow whichever resolution is contained in the agreement, which is usually to allow the defendant to withdraw their plea and dismiss the matter. However a dismissal is not guaranteed as the agreement may call for the State to introduce a new lesser charge to which the defendant will enter a plea to and be sentenced as per the terms of the deferred disposition agreement. If the defendant cannot show by a preponderance of the evidence that they have complied with the deferred disposition agreement, then the Court will proceed to sentence the defendant on the original charge as per the terms of the agreement. If during the course of the agreement, the prosecutor has probable cause to believe that the defendant is not complying with the deferred disposition agreement or has committed new criminal conduct, the prosecutor may then move the Court to terminate the deferred disposition and impose sentence on the original charge. The Court will set a hearing on this motion, where the prosecutor must show by a preponderance of the evidence that the defendant failed to comply.[10]
Again as a practical matter from the standpoint of the defendant, a deferred disposition in Maine should be entered into cautiously as the Court as a defendant is required to enter a plea of guilty in order to put the agreement in effect. The consequence of this is that if the defendant fails to comply with the agreement, they are not afforded the opportunity to fight the charge as with a filing agreement because a plea has already been entered. Rather, if the Court finds that the defendant failed to meet the terms of the deferred disposition, the Court will impose sentence on the original charge and the conviction will stand.
Texas
In the State of Texas, deferred adjudication is not treated as a criminal conviction as a matter of law; however, there is no easy way to remove the record of the case from one's background. This creates difficulties with private entities performing background checks such as employers and apartment complexes, as they can see the case, charge and its outcome, and often simply treat it the same as though it were a conviction for purposes of their review. Also, those who fill out an application for a Texas Concealed Handgun License (or any other state license with the exception of a Texas Driver License or state issued ID card) the Deferred Adjudication charge must be disclosed (for CHL applications if the Deferred Adjudication is over 5 years old the individual is eligible to apply but has to disclose their criminal past). To date the State of Texas has passed into law the Order of Nondisclosure where criminal justice agencies (law enforcement, community supervision e.g. probation) are prohibited from disclosing to the public criminal history record information related to the offense for which defendant successfully completed deferred adjudication community supervision. There are limitations where some criminal offenses (from sex offenses, family violence, dating violence) do not allow an Order of Nondisclosure to be filed - felony offenses (in the State of Texas) have a 5-year waiting period, some misdemeanors 2 years, and misdemeanors not listed under the 2-year waiting period can be filed immediately.
Federal Consequences
Immigration
Under U.S. immigration law (pre or post-9/11 which also includes the worded language of the USA Patriot Act) if the defendant is an illegal immigrant charged for a criminal offense, deferred adjudication is considered a conviction where once the sentence is discharged (completed) ICE (Immigration and Customs Enforcement) can have the individual deported from the United States to the country of origin. The same holds true for permanent residents of the United States (resident alien) if moral turpitude is invoked.
Military
It used to be practice for a judge to give a pending convict the option of joining the military, or serving prison time (R. Lee Ermey being one prominent example of this).[11] However, the U.S. Army, Marine Corps, Air Force, and Coast Guard have since explicitly forbidden entrance in to armed forces as an alternative for judicial punishment, and the U.S. Navy strongly discourages it.[12] The U.S. Armed Forces have required moral waivers for those convicted of crimes to be inducted since the 1960s. The myth still lives on in legends involving the U.S. military, especially as some servicemen themselves perpetuate it, and it may still in fact be rarely unofficially issued. However, it is broadly forbidden, and very uncommon in present times. One such case of the ban's enforcement arose in 2006, where a New York judge gave a man this option in lieu of spending up to a year in jail for aggravated assault. The Army however, rejected his entrance under those terms, having officially banned the option in 1984.[13][14]
In United States law, an Alford plea, also called a Kennedy plea in West Virginia, an Alford guilty plea, and the Alford doctrine, is a guilty plea in criminal court, whereby a defendant in a criminal case does not admit to the criminal act and asserts innocence, but admits that the evidence presented by the prosecution would be likely to persuade a judge or jury to find the defendant guilty beyond a reasonable doubt. This can be caused by circumstantial evidence and testimony favoring the prosecution and difficulty finding evidence and witnesses that would aid the defense.
A plea bargain is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.
Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration.
A suspended sentence is a sentence on conviction for a criminal offence, the serving of which the court orders to be deferred in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that period and fulfills the particular conditions of the probation, the sentence is usually considered fulfilled. If the defendant commits another offence or breaks the terms of probation, the court can order the sentence to be served, in addition to any sentence for the new offence.
In criminal procedure, an adjournment in contemplation of dismissal allows a court to defer the disposition of a defendant's case, with the potential that the defendant's charge will be dismissed if the defendant does not engage in additional criminal conduct or other acts prohibited by the court as a condition of the ACD. The defendant subject to the adjournment in contemplation of dismissal is restored to the status he or she occupied prior to arrest, either during or after the period of adjournment that accompanies the ACD: that is, all records of the arrest and after the period for which the ACD applies; however, in many jurisdictions a local law enforcement record of the arrest is retained by default, unless that record is explicitly expunged.
A discharge is a type of sentence imposed by a court whereby no punishment is imposed.
Collateral consequences of criminal conviction are the additional civil state penalties, mandated by statute, that attach to a criminal conviction. They are not part of the direct consequences of criminal conviction, such as prison, fines, or probation. They are the further civil actions by the state that are triggered as a consequence of the conviction.
In the common law legal system, an expungement proceeding is a type of lawsuit in which an individual who has been arrested for or convicted of a crime seeks that the records of that earlier process be sealed or destroyed, making the records nonexistent or unavailable to the general public. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
A presentence investigation report (PSIR) is a legal document that presents the findings of an investigation into the "legal and social background" of a person convicted of a crime before sentencing to determine if there are extenuating circumstances which should influence the severity or leniency of a criminal sentence. The PSIR is a "critical" document prepared by a probation officer via a system of point allocation, so that it may serve as a charging document and exhibit for proving criminal conduct. The PSIR system is widely implemented today.
California criminal law generally follows the law of the United States. However, there are both substantive and procedural differences between how the United States federal government and California prosecute alleged violations of criminal law. This article focuses exclusively on California criminal law.
A diversion program, also known as a pretrial diversion program or pretrial intervention program, in the criminal justice system is a form of pretrial sentencing that helps remedy behavior leading to the arrest. Administered by the judicial or law enforcement systems, they often allow the offender to avoid conviction and include a rehabilitation program to avoid future criminal acts. Availability and the operation of such systems differ in different countries.
The Wisconsin circuit courts are the general trial courts in the state of Wisconsin. There are currently 69 circuits in the state, divided into 10 judicial administrative districts. Circuit court judges hear and decide both civil and criminal cases. Each of the 249 circuit court judges are elected and serve six-year terms.
A deferred prosecution agreement (DPA), which is very similar to a non-prosecution agreement (NPA), is a voluntary alternative to adjudication in which a prosecutor agrees to grant amnesty in exchange for the defendant agreeing to fulfill certain requirements. A case of corporate fraud, for instance, might be settled by means of a deferred-prosecution agreement in which the defendant agrees to pay fines, implement corporate reforms, and fully cooperate with the investigation. Fulfillment of the specified requirements will then result in dismissal of the charges.
Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.
A deferred sentence is a sentence that is suspended until after a defendant has completed a period of probation. If the defendant fulfills the stipulations surrounding probation, a judge may then throw out the sentence and guilty plea, clearing the incident from their record. If the defendant violates probation, they must serve the full sentence immediately.
Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory has been used to analyze the plea bargaining decision.
Expungement in the United States is a process which varies across jurisdictions. Many states allow for criminal records to be sealed or expunged, although laws vary by state. Some states do not permit expungement, or allow expungement under very limited circumstances. In general, once sealed or expunged, all records of an arrest and of any subsequent court proceedings are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged.
Expungement in Texas is a legal process through which individuals to seek erasure of an event from their criminal records.
Missouri has two forms of expungement, one generally applicable to criminal cases and a unique one for the crime of being a minor in possession of alcohol. On July 13, 2016, governor Jay Nixon signed Senate Bill 588 into law, which expands the opportunities available for expungement of criminal convictions in Missouri. The new law went into effect January 1, 2018.
The Pretrial Intervention Program (PTI) is a program targeted at providing first-time offenders charged with non-violent crimes with an opportunity to avoid the crippling consequences often associated with a felony criminal conviction, and attempts to relieve some of the burden on the criminal justice system caused by such offenders. The program renders early rehabilitative services and aims to deter future criminal behavior. Many states have similar programs employed under a variety of names.
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