Deferred prosecution describes an agreement to put a criminal case on hold while the accused completes an agreed-upon set of requirements.  If the accused successfully completes all the requirements, the case is dismissed. Some understand this process as a sort of voluntary probation, although there are certainly important differences.

Deferred Judgment And Sentence (DJ)

The most common form of deferred prosecution in Colorado takes the form of a deferred judgment and sentence.  Sometimes this is referred to by attorneys and courts as a DJ.  Deferred judgment and sentence is usually only available in a few limited cases, and is usually offered to defendants with no history of prior convictions.

In its typical form, a deferred judgment and sentence will be worked out as an agreement between the defense and the prosecution during the pre-trial phase of a case. This can happen at any point after charges are filed, but before the trial date. It is our practice at Ready Law to always obtain and review all available discovery, and to complete all preliminary investigation into the prosecution’s case, before advising a client regarding whether any offer for agreement with the prosecution is in the client’s interests.

If a deferred judgment and sentence is being considered, usually the prosecution’s primary interest is in setting up some monitoring of the accused and requiring the accused to accomplish a list of requirements within a specified period of time.  So upon successful agreement, a defendant might agree to complete a domestic violence class, pay restitution to an alleged victim, and stay out of trouble with police for a certain period of time.  The accused might even agree to alcohol monitoring and/or checking in with a probation officer during the monitoring period. An agreement to a deferred judgment and sentence could include a wide variety of requirements and lengths of time.

In exchange for successfully completing the requirements agreed to at the time the deferred judgment and sentence is entered with the court, the court agrees to dismiss the case.  As an example assume the defense and the prosecution reach an agreement to a two-year deferred judgment and sentence. The agreement would likely include requirements like those covered above.  Once the agreement is complete and put into writing, the defense and the prosecution would then present it to the court for approval.

Entry of a Plea Required

Before the court approves a deferred judgment and sentence, the court will almost always require the accused to enter a plea of guilty. The court then sets aside that guilty plea, more or less holding on to it for later.  If the defendant does not successfully complete all the requirements in the agreement, the court will call the case again and enter the guilty plea.  At that point, the court will also sentence the defendant just as if the defendant had gone to trial and lost.  In other words, if the defendant does not meet all the requirements of the agreement, a conviction enters and a sentence is imposed.

If the defendant does successfully complete all the requirements of the deferred judgment and sentence agreement, including not having any additional arrests, police contact, etc, during the agreed-upon period, the court will review the case after that agreed-upon period has passed.  When the court reviews the case, the case will be dismissed, along with the guilty plea, and no conviction or sentence will be entered.

Clearly it is very important for a defendant to carefully consider whether he or she can successfully complete all the requirements of a deferred judgment and sentence prior to entering any agreement with the prosecution or the court.  The stakes are high.  By accepting the agreement, a defendant gives up a right to a trial, and any right to contest or argue that they are not guilty of the crime charged.  Successful completion of all requirements means the case gets dismissed, just as it would if the defendant were to go to trial and be acquitted.  In that sense arranging and successfully completing a deferred judgment and sentence can certainly be a win.  Failure to complete even one requirement, however, means the guilty plea enters, and the defendant will likely be convicted and sentenced without a trial.

As with any plea deal, a deferred judgment and sentence should be carefully considered only after a full and thorough review of the evidence available and likely to be presented at trial, and only after a defendant is fully advised  by an experienced criminal defense attorney.

Diversion

Like a deferred judgment and sentence, diversion is another way for a defendant to avoid the risk of conviction by having their case dismissed.  Also like a deferred judgment and sentence, diversion is only available in limited cases, and typically only offered to people who have no record of prior convictions.  The availability of diversion depends upon the existence of a diversion program in the jurisdiction where the crime is charged.  Some jurisdictions simply do not offer it.

Unlike a deferred judgment and sentence, diversion is typically a structured program that the defendant is required to participate in and complete.  If a defendant is able to successfully complete the program, their case is dismissed.  The defendant is typically not required to enter a guilty plea in advance, so failure to complete the program usually means the defendant goes back to court and back to preparing for a trial.  However, diversion programs can sometimes be difficult to complete, and usually require that a participant admit guilt. Some even require that participants consistently and persuasively express regret for the acts they were accused of.  Diversion programs are typically best suited for people who admit guilt and want to take responsibility and make amends for their actions.

Protections for admissions made during diversion programs may be limited, so even where this option is available it should be considered carefully, and only after a thorough discussion with an experienced criminal defense attorney.

If you are seeking or considering a deferred prosecution, including a deferred judgment and sentence, or a diversion program, feel free to contact Ready Law to discuss the specific facts of your case.