Cases are sometimes resolved with an offer of deferred adjudication. There are benefits to being placed on deferred adjudication as opposed to regular probation. However, there are also significant risks that you must be aware of.

The first thing to recognize is that deferred adjudication is simply a type of probation (sometimes referred to as community supervision). As far as what you have to do on supervision, there is generally no difference. You still have to report to a probation officer, pay for the privilege of being on probation, stay out of trouble, take some classes, and generally do whatever your probation officer tells you - which includes where you can go and when you have to be home.

The big benefit of deferred probation comes from the process leading up to being placed on probation. In regular probation, the judge finds you guilty, sentences you, and then suspends the sentence. Once you complete your term of probation, you're done—and you still have a conviction.

In deferred, the judge does not find you guilty when he places you on probation. Instead, he (or she) will find there "is sufficient evidence of guilt" and defer a finding of guilt -A Waco Criminal Defense Lawyer which is why it's called deferred. You are then placed on supervision, and if you successfully complete probation, the charges are "dismissed," and you can truthfully claim you don't have a conviction. In most cases, you can also obtain an "order of non-disclosure," which basically seals your record. That can be a significant benefit for those who are worried about the effect a final conviction can have on their future. While it's not a perfect solution - for reasons that take far too long to explain here - it's about the best you can do.

As with most things, the benefit comes with a downside. The downside is what can happen to you if you violate the terms of supervision. In regular probation, you are sentenced, and if your probation is revoked, that is the sentence that will most likely be imposed. For instance, in a second-degree felony, the punishment range is 2-20 years. You might make a deal for 5 years, probated for five years. That means if you violate probation and your probation is revoked you would end up getting sentenced to five years in prison.

In deferred adjudication, you have not been found guilty, so the first step is to find you guilty in a revocation proceeding. Once that is done, the judge then has complete discretion in choosing a sentence. He/She could put you on regular probation or sentence you to 20 years; that decision is totally up to the judge. So, in the example I gave, the individual could end up going to prison for 20 years instead of 5 years if they had taken regular probation.

As you can see, the decision to accept an offer of deferred probation is an important one. Everyone thinks they can successfully complete probation, but the truth is not everyone can. That is where the advice of a competent, experienced Waco criminal defense lawyer is invaluable. Most lawyers who have been around a while can successfully predict—with a high level of certainty—those individuals who are not going to be able to complete the probation.

The other consideration is whether the benefit is really worth the risk. For many people, the benefit is not that great. While the discussion of what an order of non-disclosure is may be too complex for here, it's not the equivalent of wiping the charge completely off your record. Additionally, for some people, a conviction is not going to really make much difference - especially for some misdemeanors. You need to understand what the consequences of a final conviction are before you can make this decision. Again, this is where the advice of a competent, experienced lawyer is necessary. 

The good news is that those who write the laws are starting to understand the devasting effects a conviction can have on someone. They are starting to better understand how one mistake can destroy a person's future. It was not that long ago that there was no process for sealing a record if you had been placed on any type of probation. The statute authorizing "non-disclosure" was a significant step forward. Hopefully, that trend will continue.

In the meantime, understand the risks and benefits. If you don't, you cannot make an informed decision. Contact our office if you need help with your case.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.