Don’t Confuse a Deferred Sentence with a Deferred Prosecution

Video Transcribed: What is a deferred sentence in Oklahoma? I’m Tulsa attorney James Wirth and we’re about to talk about deferred sentences. So first thing about deferred sentence is you don’t want to confuse them with a deferred prosecution.

In a deferred prosecution, that’s just a deal between you and the prosecutor, the defendant and the prosecutor. The courts not really involved in that. With a deferred sentence, that’s more formal and it’s done with the court and court’s approval.

Okay, so what is a deferred sentence? That is essentially a deal that can be worked out. Usually an attorney negotiating with a prosecutor works it out in order to try to avoid their client from getting a conviction on their record.

So, that’s part of a negotiation, it’s part of a plea deal. And once you get an agreement on that, you go ahead and enter a plea. So the plea would be either no contest, or a guilty. Something that allows the court to find guilt, but instead of finding guilt, when then there’s a deferred sentence done, the court withholds a finding of guilt.

And then sentencing is passed off for however long the term is on the agreed upon deferred sentence. So that could be six months, 12 months, 18 months, 24 months. Under Oklahoma law, used to have a maximum of five years, it’s now actually 10 years. So you could have a 10 year deferred sentence.

During that period of time where you’re on the deferred sentence, the case doesn’t show you as having a conviction. The court didn’t find you guilt. The court withheld that finding. Instead the case just shows as pending.

And while it’s pending during that time, you’re on probation and you have to follow the rules and conditions of probation. So that’s typically, you got to pay your court costs, you got to pay your probation fees, sometimes you have to check in depending on whether it’s DOC supervision or DA supervision.

There’s various types of check ins you have to do. You might be asked to do a UA if applicable. There’s certain things that could be asked. You might have to do certain types of counseling. Depending on what the offense is and what the agreement of the deferred sentence is. Could have domestic violence counseling. Things like that. Could have restitution that needs to be paid, could be work hours.

Whatever it is, while you’re on that, you need to complete all those requirements and stay out of trouble, no new offenses. And there could be requirements that you stay away from bars and you not associate with felons.

Whatever those rules are, you follow them completely. Once you come back at that sentencing that’s been deferred for that period of time, you come back to the court and if you’ve completed everything, the court allows you to withdraw your plea of no contest or guilty. And then the court dismisses the case and then the court case is expunged. So you’ve got nothing on your record and nothing, never were you ever convicted of anything.

So that’s a good thing for a defendant in order to get a clean start after that. But one thing the deferred sentence expungement doesn’t expunge is the arrest record. So you want to get a separate expungement for that.

Now what happens if you don’t complete what you’re supposed to complete? What happens if you violate your probation? Well, that’s a dangerous proposition because you’ve already admitted guilt. And now what happens is, is the state files an application to accelerate sentencing, to move that sentencing up. And the state presents an argument that you violated your probation.

And if the state proves by a preponderance of the evidence, meaning more likely than not, a standard way below the usual beyond a reasonable doubt we deal with in the criminal justice system. If the state proves that you violated probation more likely than not, then the court can sentence you anywhere within the original range of punishment for the offense.

So that can be a dangerous thing. So if you’re on a deferred, you want to make sure that you get everything completed as appropriate. But, if you’re prepared to do that and stay out of trouble, it’s a good way to get your record clean, not have a conviction on your record while it’s still going on.

Any questions about that or if you’re facing circumstances and have more questions about a deferred sentence and other types of sentences, get a consult with an attorney. If you want to speak with someone in my office, go to makelaweasy.com.