Many people come into my office wanting to know if they can “go on probation” to avoid jail or prison time.
The first thing I tell them is stop talking about pleading guilty – it’s always the State’s burden to prove you did the crime, and sometimes the best option is to try and beat the case, either through pretrial negotiations or jury trial.
But when a plea is in a client’s best interest, I always take the time to explain that there is more than one option to avoid jail or prison. In Texas a judge can defer a finding of “guilty” and place you on “deferred adjudication,” or you can be found guilty by a judge or jury and be placed on what is called “straight probation.” In this post I try to outline the major differences between these two types of dispositions. As always, your situation is fact-specific. Don’t mistake this general primer as legal advice, and make sure to talk with your attorney before making any decisions related to your case.
There are three big differences between Differed Adjudication and Probation:
1. “Probation” means “Conviction”
When you agree to a “straight probation” you get convicted of the crime you pled guilty to. That means even if you don’t serve any time, you still have a conviction on your record. It also means that in the future if you commit other crimes, this prior conviction an be used against you to “enhance” your range of punishment.
When you agree to take a “deferred adjudication,” the judge accepts your guilty plea but defers a finding of guilt. As long as you do what you’re supposed to for the duration of your time on supervision, your case will get dismissed. Instead of a conviction on your record, you’ll have a “successful completion” in the disposition line instead.
Successful completion of a deferred adjudication may allow you to get an order of nondisclosure. Such orders prohibits disclosure of the case to non-governmental entities. But be careful — nondisclosure orders are only available for a limited number of offenses. You’ll need to get advise from your lawyer to see if such an order could be signed in your case.
2. “Deferred” means exposure to the full punishment range if you violate your conditions
Let’s be clear — both straight probation and deferred adjudication have inherent risks. No matter what type of community supervision you are on, if you screw something up serious consequences can occur, including the judge deciding to send you to jail or prison.
But if you have been found guilty and placed on a straight probation, your exposure to jail or prison time is “capped” by the original plea. If you pled to a seven year sentence probated for four years, for example, the most prison time you could receive from the judge is seven years, and the duration of your probation would be four years. The prospect of going to prison for seven years is bad – but at least you know the number.
On a deferred adjudication, you are exposed to the full range of punishment if you violate the terms of your supervision. For example, if you accept a plea for five years deferred on a second degree felony, you could potentially be sentenced to 20 years in prison if you violate the terms of the supervision, since a second degree crime in Texas has a punishment range of 2-20 years.
As you can see, depending on your plea deal, the stakes could be very high when deciding to accept an offer of deferred adjudication.
3. “Probation” means doing at least half the time
If you pay your fees, avoid controlled substances, and jump through all the probation officer’s hoops, you may want to try and early terminate your probation. But make sure to check your calendar — when you sign up for a straight probation, you have to complete at least half the time before the judge can early terminate the case. There are also specific time credits that accrue when you are on probation that can speed you up to the halfway mark. Be sure to talk to an attorney about whether these credits would apply to your case or not.
With a deferred adjudication, there is no bright-line rule on when you can early terminate. The key is to know your judge’s informal rules on such matters. Get the info you need on when or if to file an early termination from an attorney familiar with that particular court.