Law Office of Robert E. Luttrell III-Cleburne, Texas

Generally speaking, there are two types of probation, regular and deferred adjudication (or "deferred"). Although probations are very similar there are some important differences. The main difference is that the conviction and sentencing are deferred (postponed), in a deferred adjudication probation

SIMILARITIES

Regular Probation Deferred Adjudication

1. May be supervised or unsupervised, at judge's discretion. Almost all cases are supervised. Same

2. Defendant usually must report and pay a probation fee monthly. The judge may require more frequent reporting. Same

3. A fine and court costs are usually assessed. Same

4. The judge may impose any reasonable conditions of probation , including counseling, community service, jail time, drug or alcohol testing or treatment, restitution for damages, G.E.D. or other educational training, and payments to crime stoppers. Same

5. Only the court originally granting probation may alter the terms and conditions. Same

6. 10 years is the maximum probation period for a felony. 2 years is the maximum for misdemeanor cases. Same

7. If the defendant is later convicted of another offense, the fact that he has had an earlier probation is admissible at the defendant's punishment hearing. Same

DIFFERENCES

Regular Probation Deferred Adjudication

8. Results in a final conviction. Does not result in a final conviction. The conviction is deferred.

9. A sentence is ordered when the defendant's plea is entered. The sentence is then suspended. No sentence is ordered when defendant's plea is entered. The sentence is deferred.

10. May be assessed as punishment after a guilty plea, a no contest plea, or a guilty verdict at trial. Only available upon a plea of guilty or no contest, not available at trial.

11. Available from a jury or judge. Only available from a judge.

12. If two years or one-third of the probation period (whichever is less) has been successfully completed, the judge may terminate the probation upon request
of probationer. Judge may terminate probation at any time, if "in the best interest of society and the defendant"

13. Upon violation of probation, the defendant may be required to serve the original sentence. Upon violation, the defendant may be required to serve any length of sentence allowed by law.

14. Not available if defendant used or exhibited a deadly weapon, or for any of the following offenses: capital murder, aggravated kidnapping, aggravated sexual assault, aggravated robbery. Not available on DWI or DWLS cases.

A defendant doesn't always have a choice as to whether or not probation is available, or as to which type of probation he or she may get. In a jury trial, a defendant is only eligible for probation from the jury if the defendant has never been convicted of a felony in this or any other state. If a jury assesses a defendant's punishment at confinement for less than 10 years, the judge may grant probation to the defendant.

Normally, deferred adjudication is considered the more lenient punishment because the defendant avoids a conviction if the probation is successfully completed. But the deferred can be a nightmare as well. If the defendant does not successfully complete a deferred adjudication, he can be assessed the maximum sentence available by law.

How bad can that be? Consider this example: A 22 year old young man gets 6 years adjudication for the offense of delivering cocaine. All he did was hand some stuff to a pretty girl at a party. Too bad she was an undercover cop. He stays out of trouble for 5 years and 10 months - only 2 months from the end of his probation. Then he tests positive for marijuana during a random urinalysis, or picks up an assault charge fighting a guy outside a bar. The judge can now sentence him to 99 years or life on the cocaine case, and he isn't entitled to a jury trial, or even an appeal. Deferred can be a major nightmare under circumstances like this.

Sentencing, including probation, may be done in any of three ways: (1) have the jury set sentence, (2) have the judge set the sentence or (3) have your lawyer work a deal (plea bargain) with the prosecuting attorney. You, with your attorney's advice, should choose whichever way you feel will get the fairest sentence. In criminal cases, the defense and the prosecution each have the right to insist on the jury setting the punishment.

Plea bargains have two advantages: (1) they are quicker, so many attorneys charge less for them (2) there are no risks - you know what the deal is going into the hearing, so you can't get hammered by an unsympathetic judge or jury.

If a defendant hasn't committed a horrible crime and has a fairly clean criminal record, he is likely to be offered probation during the plea bargaining. In many cases, the prosecution will allow the defendant to choose between regular probation and deferred. If the prosecution insists on one type of probation and the defendant wants the other, the defendant has to choose between (a)accepting the prosecutors offer or (b) letting the judge or jury decide. If the defendant chooses to let the judge or jury decide, he or she may not get probation at all!

As a final word of advice: If you have a choice, only choose deferred adjudication if you know that you can stay out of trouble, follow all of the rules and successfully complete your probation. Otherwise, take the safe route and take regular probation.

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