Probation Plea

f you plead guilty to a crime, one of several things may happen.  You may be sentenced to jail or ordered to pay a fine.  Or, you may receive probation or deferred adjudication.  You might not plead guilty to a crime, but may enter a pre-trial diversion program.  This post deals with the last three of these.  All three involve reporting to community supervision for a set amount of time, but they really are three very different things.

Probation: When you are given a probated jail (or prison) sentence, it means that the judge has found you guilty of a crime, but has suspended the sentence; for example, on a Class B misdemeanor, you might be given a six-month jail sentence probated for 12 months.  This means that you will report to probation for a period of 12 months, and if you do not violate the terms of your probation, you will not go to jail.  If you do violate your probation, the state will file a motion to revoke, and if it is granted by the judge, you will go to jail.

Deferred Adjudication: When you are granted deferred adjudication, the judge accepts your plea of guilty but does not find you guilty, instead deferring adjudication for a set period of time.  As with a probated sentence, you will report to probation for a set amount of time.  If you violate the terms of your probation, the state will file a motion to adjudicate; if this happens, the judge will adjudicate you guilty, though you will not necessarily go to jail; in some cases, the judge may just find you guilty but place you on a probated sentence.

Pre-trial diversion: When you enter a pre-trial diversion program, you do not actually plead guilty before a judge.  What generally happens is that the state will agree to place you on a pre-trial diversion program.  The case will be passed for a certain period of time, and during that time, the defendant will report to probation.  If the defendant successfully completes the program, the case will be dismissed by the state.  Generally, most pre-trial diversion programs (they differ from county to county; some counties, such as Tarrant County, do not offer them) require the defendant to plead guilty to the offense if he violates probation.

What are the advantages and disadvantages of each?

Well, the only real advantage to a probated sentence is that you don’t go to jail (though some would argue that completing 12 months of probation is more difficult than a couple of months in jail.)  Aside from that, there aren’t really any advantages: it counts as a conviction on your record, and it will be on your record forever.  In more than a few cases, the defendant might actually be better off just biting the bullet and spending some time in jail (particularly on minor offenses); but because jails and prisons are overcrowded, prosecutors generally like to give probated sentences to all but the most dangerous offenders, and most defendants figure they’d rather go to probation than go to jail.

The primary advantage of deferred adjudication is that it is not considered a conviction.  If the case is never adjudicated, it may be eligible for an order of nondisclosure — basically, a judge will order that the record be sealed and only accessible by certain state agencies (for example, the Bar Association or medical licensing boards) but not by the general public.  Unlike a pre-trial diversion, though, a case on which you served deferred adjudication is not eligible for expungement (in which records of the case are destroyed.)  Also, on felony offenses, deferred adjudication leaves the entire range of punishment available if the case is adjudicated, while a probated sentence may preemptively limit the punishment range.  For example, on a second-degree felony, a five-year sentence probated for five years limits the punishment range to two to five years if probation is revoked; a five-year deferred sentence leaves the entire range (two to twenty) open.  Certain offenses (DWI, for example) are not eligible for deferred adjudication; and while there is no statute barring it, it’s rare for defendants with a prior criminal record to be granted deferred adjudication.

The obvious advantage to a pre-trial diversion is that it is not a conviction, and if completed it is eligible for expungement.  But counties generally have strict rules about who is eligible for diversion programs; most counties only allow first-time offenders charged with nonviolent crimes to enter a diversion program.  Some counties may have an age limit (for example, only defendants under 25 are eligible), or they may not allow them for certain crimes (like DWI, in many cases.)  And they generally require the defendant to pay a fee to enter the program (usually something like $500.)  So basically, a whole lot of defendants either aren’t eligible for a diversion or can’t afford to enter the program.  (While I generally think diversion programs can be a good option for defendants, I’m opposed to them a bit because they generally offer young people from middle-class or upper-class backgrounds a chance to get a crime off their record while not affording the same opportunity to young people from poor backgrounds.  Okay, off my soapbox now.)  If there’s a disadvantage, it’s that there’s no check on the prosecutor.  In order to revoke probation or adjudicate, the state must file a motion to revoke or adjudicate, which must be approved by a judge; however, the state may unilaterally remove a defendant from a diversion program.  So generally, pre-trial diversions are “one strike and you’re out” programs.