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Deferred Adjudication / Pretrial Diversion

Certain types of offenses and offenders may qualify for programs that result in the dismissal of the case against the defendant upon completion of specified conditions. These programs go by several different names, but they all remove the defendant from the ordinary channels of prosecution so that the defendant may complete certain conditions. Once the defendant meets the conditions, either the prosecutor or the court will dismiss the charges.

The goal of this sort of program is to allow the defendant time to rehabilitate themselves and demonstrate that they are capable of behaving responsibly. For so doing, the state rewards the defendant by dismissing the charges.

These programs are typically used for drug or domestic offenses, or for first-time offenders. The conditions imposed typically include some form of counseling and/or probation, and require the defendant to demonstrate good conduct throughout the program.

There are two types of these kinds of programs: those that require the defendant to first plead guilty to the charge and those that do not. The former type is usually known as deferred adjudication, while the latter category is generally known as pretrial diversion.

Pretrial Diversion

Pretrial diversion removes a defendant from prosecution prior to a guilty or nolo contendere (no contest) plea. In addition to pretrial diversion, the following terms are often used to describe this sort of program:

  • deferred prosecution
  • pretrial intervention
  • accelerated pretrial rehabilitation
  • accelerated rehabilitative disposition

As mentioned above, in a pretrial diversion the prosecutor halts the case against the defendant so that the defendant can meet certain conditions. These conditions can include probation, counseling and community service, among others.

In most cases, the prosecutor has the discretion to admit a defendant to a pretrial diversion program. A statute will set the eligibility requirements, but a prosecutor will make the ultimate determination about whether or not to allow a defendant to enter into a pretrial diversion program. In some jurisdictions, judges can suggest pretrial diversion for a defendant or have the final say about admitting a defendant to pretrial diversion.

Sometimes prosecutors must get the consent of the victim of the crime before they can put a defendant into pretrial diversion. Certain things, such as previous involvement in a pretrial diversion program, can render a defendant ineligible for pretrial diversion.

In addition, prosecutors will usually require a candidate for pretrial diversion to waive their right to a speedy trial and their protections under the relevant statute of limitations.

If the defendant fails to meet the conditions of the pretrial diversion program, prosecutors can put the defendant on trial as if no diversion had taken place.

Deferred Adjudication

Deferred adjudication begins after a defendant has pled guilty or nolo contendere. In this way, it resembles probation, but in most other respects a deferred adjudication proceeds similarly to a pretrial diversion. In addition to deferred adjudication, this sort of program is also known as a stay of adjudication.

Even though the defendant pleads guilty or nolo contendere in a deferred adjudication, the court will not enter a judgment of guilt. Instead, like a pretrial diversion, the court will lay out a number of conditions that the defendant must meet. If the defendant meets the conditions, the charges are dismissed and the defendant will not have a record of conviction.

If, on the other hand, the defendant does not satisfy the conditions, the court will enter a judgment and determine a punishment. At this point, the defendants record will show a conviction.

The main difference between a deferred adjudication and a pretrial diversion is that, in a deferred adjudication, a defendant must first plead guilty or nolo contendere. This means that, if the defendant does not fulfill the conditions of the deferred adjudication, the state does not have to put the defendant back on trial for the crime. Instead, the court simply enters its judgment and sentence.

In a pretrial diversion, if the defendant fails to meet the conditions of the program, the state must then place the defendant on trial since there was no prior guilty plea.

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