Deferred Adjudication / Pretrial Diversion

Created by FindLaw's team of legal writers and editors.

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 types of programs go by several different names, but they all remove the defendant from the ordinary channels of prosecution so that they may complete certain conditions. Once the defendant meets the conditions, either the prosecutor or the court will dismiss the charges.

The goal is to allow the defendant time to rehabilitate themselves and demonstrate that they are capable of behaving responsibly; the state rewards the defendant by dismissing the charges. Alternative sentencing programs are typically used for drug offenses, domestic offenses, or for first-time offenders. The conditions imposed typically include counseling and/or probation, and require the defendant to demonstrate good conduct throughout the process.

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

Pretrial Diversion

This removes a defendant from prosecution prior to a guilty or nolo contendere (no contest) plea. Additionally, the following terms are often used to describe programs of this kind:

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

The prosecutor halts the case against the defendant so that they can meet certain conditions, including: probation, counseling and community service, among others.

Pretrial Diversion Determinations

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 diversion program before trial. In some jurisdictions, judges can suggest this or have the final say.

Sometimes a defendant's entry is based on the prosecutors obtaining the consent of the victim of the crime Certain factors, (such as previous involvement in a diversion program), can make a defendant ineligible for participation. Additionally, prosecutors will usually require a candidate to waive their right to a speedy trial and their protections under the relevant statute of limitations.

Program Length

The length of a pre-trial diversion program varies between states and for felonies and misdemeanors. For misdemeanors, they generally run from six months to a year, while felonies generally run for one to two years. But always check with your particular state and jurisdiction to learn more about your specific situation.

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 (also called "a stay of adjudication") begins after a defendant has pleaded guilty or nolo contendere. In this way, it resembles probation, but in most other respects a deferred adjudication proceeds similarly to a pretrial diversion.

Even though the defendant pleads guilty or nolo contendere in a deferred adjudication, the court will not enter a judgment of guilt. Instead, 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 won't have a record of conviction.

The length of DEJ varies by state and the type of offense involved, but often the program can last around 12- 36 months as in California pursuant to Penal Code Section 1000.

However, if the defendant doesn't satisfy the conditions, the court will enter a judgment and determine a punishment. At this point, the defendants record will show a conviction.

Differences Between Pre-Trial Diversion and DEJ

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 doesn't fulfill the conditions of the deferred adjudication, the state doesn't 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.

Questions About Pretrial Diversion? Ask an Attorney

Receiving pretrial diversion of your charges requires some delicate negotiation with the prosecution, and sometimes the judge. The assistance of a qualified attorney can be critical to getting the deal you need since lawyers often understand the arguments that are most compelling in your jurisdiction or even to an individual judge or prosecutor. Don't delay; call a local defense attorney today.

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