Deferred Adjudication: Potential Pitfalls

One of the frequent offers prosecutors will extend to defendants is an offer of “deferred adjudication”–essentially a type of probation where a defendant, if they are good and don’t get into trouble during the probation, can end up avoiding a conviction on their record. Honestly, it’s a pretty good sell, but a lot of defendants tend to overlook the negative side: if they mess up, they have just handed the prosecutor the ability to ask, and the judge the ability to grant, whatever sentence is within the underlying sentencing range.

For example, say Joe Dopedealer gets arrested with half a pound of pot. Joe is offered a county jail sentence of 90 days under Section 12.44(a) of the Penal Code, in which he would get branded a felon outright, or the chance to avoid the felony rap with an offer of 4 years deferred adjudication. Joe decides to take an offer of 4 years Deferred Adjudication. Sounds pretty good, right? Stay out of trouble for 4 years and Joe ends up avoiding a felony conviction on his record.

Not necessarily. Let’s say that Joe just doesn’t have the best of luck, and gets picked up for another drug charge while he is in his last year of deferred adjudication. At that point, Joe would be facing a minimum of 180 days in a State Jail Facility, with a potential 2 year sentence, should the judge decide to revoke his community supervision, adjudicate him guilty, and sentence him accordingly. If the judge does so, then Joe takes a felony rap and spends some time away from friends and family more than 3 years after he started his community supervision. This is in addition to whatever the courts do with the new drug charge Joe picks up. Essentially those three years were for nothing, Joe is still branded a felon, and Joe could spend up to 2 years in a state jail while not having the bargaining chip of going to trial that he had originally.

End lesson in this is as follows: you should always make it a point to thoroughly evaluate the options that are presented to you by the State, ideally with the assistance of counsel. While the above scenario uses a fairly pessimistic outcome, an experienced defense attorney can help explain how the county you are charged in usually resolves violations of probation conditions and whether that “sweet deal” turns out to be bitter medicine in the end.