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The Perils of Deferred Adjudication

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The Perils of Deferred Adjudication

The Perils of Deferred Adjudication

In previous articles, I have discussed some of the numerous possible outcomes concerning a criminal charge.  One such outcome is what is referred to as “Deferred Adjudication” in Texas.  Although a very tempting offer in most circumstances, unless adhered to religiously, Deferred Adjudication could be worse than a straight conviction.

A Deferred Adjudication occurs when the judge presiding over the criminal case, whether through a plea agreement or on his own volition, decides that the best interest of justice are served by not finding a defendant guilty of a criminal offense.  Rather, the judge will note that he finds there is sufficient evidence to find a defendant guilty of the alleged offense but will deferred that finding of guilt for a specified period of time.  During this deferred period, the defendant will be placed on probation (or community service as it is called in Texas) and be required to perform certain tasks.

In almost every probation/community supervision, one of those tasks will be community service as well as monthly or even more frequent reporting to a probation or community supervision officer.  Additionally, the defendant will be required to attend certain classes, pay court costs and fines as well as other reasonable conditions as imposed by the judge.

On the surface, this sounds just like normal (or straight) probation/community supervision.  However, a key factor in deferred adjudication occurs at the end of the probation/community supervision period.  Upon successfully completion of a deferred adjudication probation/community supervision period, the court will dismiss the defendant’s case.  That means no conviction, ever.  In most cases, the defendant can them petition the court for a “notice of non-disclosure” that would essentially seal the defendant’s record prevent almost everyone except for licensing agencies in the state of Texas or law enforcement from ever seeing the record.

But there is a down side.  Failure to successfully complete the probation would first and foremost, prevent sealing of the record.  The period of probation/community service would be on the an individual’s record forever, to be seen by any potential future employer who decides to conduct a background check.  With the ever increasingly competitive job market, even a small mark on a criminal background check can be the stumbling block to game full employment.

If there is a specific violation of the terms of probation, the court can do mark that consider the community service unsuccessful.  The court may move to adjudicate guilt, that is make an official finding that the defendant committed the offense and saddle him with a lifelong conviction.  Further still, the court can impose a new sentence on a defendant after this adjudication of guilt resulting in not only a lengthy probation period on deferred, but also a jail sanction after months of probation.   This, as I say, is a double whammy.

So how does an individual mess up his probation,/community service?  The most common manner is simply failing to show up for probation.  Although the probation officer may excuse a one time lapse, repeated tardiness or absence will quickly result in a motion to adjudicate guilt.  Another common misstep is the recreational use of drug, most often marijuana.  Contrary to urban lore, there is no quick and easy way to flush marijuana or other illegal drugs out of your system.  Too often, even after being warned, a young man or woman will tell me that they thought they wouldn’t “pop” on the urinalysis because it had been a couple of weeks since they last smoked.  A defendant will be tested and if they use, will be caught on probation.

Although rare, often a defendant simply does nothing he is required to do on probation.  Literally, they attend no classes, preform no community service, never report, nothing.  When this happens, the courts tend to have little sympathy and a conviction follows the motion to adjudication guilt.

Now, do not take this the wrong way.  Deferred adjudication is an excellent option if a defendant is willing to put in a little work to ensure success.  Serious offenses that would hang  around a defendants neck like an albatross can be dismissed and sealed, given a person a second change after making a serious mistake.  But like all good things in life, success at deferred adjudication requires commitment by the defendant to ensure success.

David P. Armbruster is a retired United States Marine, former prosecutor, and current litigation attorney who believes the law is intended to serve people not the other way around.