How Deferred Adjudication Can Avoid a Criminal Conviction

If you're going to plead guilty, you'll be lucky if you qualify for deferred adjudication. Your plea will be set aside temporarily while you fulfill probation-like conditions.

By , Attorney · UC Law San Francisco

Deferred adjudication is a process for resolving criminal cases that gives defendants a chance to avoid a conviction. Typically, defendants who are eligible for deferred adjudication offer a guilty or no contest plea. The judge accepts the plea but sets it aside temporarily in exchange for the defendant's agreement to stay out of trouble and comply with certain conditions, such as performing community service. Defendants who comply with the conditions of deferred adjudication earn a dismissal of the charges and avoid the consequences of a criminal conviction.

What Is Deferred Adjudication?

Nearly all states and the federal government have statutes authorizing some form of deferred adjudication (also called deferred entry of judgment, deferred sentencing, deferred acceptance of guilty plea, and probation before judgment). The terms of deferred adjudication vary from state to state, but the goal is the same: at the front end of a criminal case, to divert individuals away from a conviction.

In most states, defendants who accept deferred adjudication:

  • enter pleas of guilty or no contest
  • waive their right to a speedy trial, and
  • agree to abide by certain conditions for a specified period of time (usually 12-36 months).

The purpose of deferred adjudication is to hold defendants accountable through a formal court process, without burdening them with the consequences and stigma of a criminal conviction.

Who Is Eligible for Deferred Adjudication?

Eligibility for deferred adjudication varies greatly among states, but is generally based on the type of offense and the defendant's criminal history. Some states grant deferred adjudication to first-time offenders only. Others limit it to certain categories of crimes, like drug offenses, to encourage defendants to engage in treatment.

A growing minority of states make deferred adjudication broadly available for most misdemeanors and a significant number of felonies, without regard to prior record. In these states, courts (and sometimes prosecutors) determine the appropriateness of deferred adjudication on a case-by-case basis.

Conditions of Deferred Adjudication

Deferred adjudication conditions are similar to standard probation conditions and might include:

  • obey all laws (no new arrests are convictions)
  • complete community service
  • regularly meet with a probation officer
  • pay all fines and fees
  • attend counseling
  • maintain employment or attend school, and
  • avoid drugs and alcohol.

One key difference between deferred adjudication and probation is timing: deferred adjudication occurs before judgment and sentencing, so judges can't order jail as a condition of deferred adjudication. Judges grant probation as part of a defendant's sentence and can order a period of incarceration as a condition of probation.

Benefits of Successfully Completing Deferred Adjudication

The goal of deferred adjudication is to restore defendants to the legal and social position of someone who has never been charged with or convicted of a crime.

Some states, but not all, automatically expunge and seal the records of defendants who successfully complete deferred adjudication. In these cases, background checks by private employers, landlords, or nosy neighbors won't reveal that a defendant plead guilty and successfully completed deferred adjudication. Law enforcement agencies and other authorities, like state licensing boards, will almost always have access to the entire criminal record.

For a state-by-state breakdown of deferred adjudication approaches and other record relief policies, see the Restoration of Rights Project's "50-State Comparison: Expungement, Sealing & Other Record Relief."

Consequences for Violating the Conditions of Deferred Adjudication

Defendants who violate (fail to comply) with conditions of deferred adjudication face consequences ranging from a modification of their terms to conviction and incarceration.

Defendants are entitled to a hearing in front of a judge (and in some states court-appointed counsel) when a probation officer or a district attorney alleges a violation of deferred adjudication. The burden is on the prosecution to prove the violation by a preponderance of the evidence (more likely than not) standard.

If the judge finds (or the defendant admits) a violation, the judge can modify the conditions of deferred adjudication or revoke it. If deferred adjudication is revoked, the case stands as it did the moment after the defendant plead guilty. Defendants can't change their minds and decide to go to trial at this point; instead, the judge finds them guilty based on their guilty pleas and sentences them up to the maximum possible punishment for their offenses.

Immigration Considerations for Defendants Considering Deferment

Immigrants (whether with a visa, green card, or no status at all) should carefully consider accepting deferred adjudication if deferment requires an initial guilty plea, as many do. Deportation can be triggered under federal immigration law by virtue of the initial guilty plea alone, irrespective of the defendant's successful completion of deferred adjudication. Pre-plea diversion (deferred prosecution) typically won't count as a conviction for immigration purposes. If the case is dismissed by the prosecution or won at trial (a verdict of acquittal), the defendant would also avoid immigration consequences.

Talk to a Lawyer

If you've been arrested or charged with a crime, talk to a criminal defense lawyer with experience practicing in your area. A lawyer will be able to fully explain the applicable law, including the ins and outs of deferred adjudication.

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