Probation and Pre-trial Diversion
For persons that have no prior arrests, one option that may be available is "pre-trial diversion". To be eligible for a diversion program, the defendant must:
- Admit guilt and accept responsibility for the offense;
- Report monthly to a probation officer;
- Be employed or enrolled in an accredited school;
- Commit no new offenses; and
- Not use illegal drugs.
If interested in the diversion program, the defendant submits a formal written request. If the District Attorney's office and the court approve the request, then the defendant signs a detailed written agreement. The terms of the agreement vary depending on the defendant's charges and rehabilitative needs. If the defendant fully complies with all of the diversion program requirements, then the case is dismissed. Once the case is dismissed, then, after an agreed upon waiting period, the defendant may request that all information about the case be expunged and removed from public records.
If the defendant does not complete all of the diversion program requirements, then the prosecution will file a motion to revoke the diversion. At the hearing on that motion, there is no right to a jury. The judge decides by a preponderance of the evidence whether or not the allegations are true. If the judge finds that one or more allegations are true, then the prosecution re-files the case.
Another way to avoid some or all of the incarceration that would otherwise be imposed as punishment for the offense is probation. Probation suspends the imposition of a sentence.
Types of Probation
There are two types of probation: regular probation and deferred adjudication. Deferred adjudication is a special type of probation that, if successfully completed, results in the charges being dismissed with no
conviction on the defendant's record. In a deferred adjudication, at the
time of the plea, the judge defers from making a finding of guilt or
innocence. With a regular probation, the judge or jury finds the defendant
guilty, resulting in a conviction on the defendant's record.
There are certain offenses for which probation is not allowed. For example,
deferred adjudication is not allowed for DWI and other intoxication
offenses. Regular probation is the only type of probation available for DWI
and other intoxication offenses. Also, only those who have never been
convicted of a felony are eligible for regular probation. In certain cases,
convicted felons may still request deferred adjudication from the judge, but
judges grant it only in limited circumstances.
Obtaining Deferred Adjudication
The judge usually grants both types of probation in conjunction with a plea
agreement. If the prosecution is unwilling to offer deferred adjudication
with a plea agreement, then the defendant can still request it from the
judge, but not from a jury because juries cannot defer the finding of guilt
Obtaining Regular Probation
If the prosecution is unwilling to offer regular probation with a plea
agreement, then the defendant can request it from the judge or the jury
during the punishment phase of a trial, provided that the sentence assessed
is ten years or less.
Conditions of Probation
When the defendant requests either type of probation from the judge, the
defendant must accept and follow all probation conditions that the judge
imposes, whether or not those conditions were the ones recommended by the
defense or the prosecution. With any probation, the defendant must complete
all requirements imposed by the court. These usually include, at a miniumum,
paying fines and court costs, paying a monthly supervisory fee, submitting
to random urinalysis, performing community service and reporting monthly to
a probation officer. Other requirements may include jail time, an anger
management course or a drug and alcohol education class.
If the defendant does not complete all of the probation requirements as
ordered, then the prosecution will file a motion to revoke the probation. At
the hearing on that motion, there is no right to a jury. The judge decides
by a preponderance of the evidence whether or not the allegations are true.
If the judge finds that one or more allegations are true, the judge has many
options. The judge can continue the probation as originally ordered, modify
the probation by imposing jail time and new requirements, or revoke the
probation and impose punishment. The maximum sentence for violating a
regular probation is the one set when the probation was first granted. When
imposing punishment for violating a deferred adjudication, the judge can
impose any sentence within the punishment range for the offense, including