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Deferred Prosecution Probation

February 3rd, 2010
By Jamie Markham

Under G.S. 15A-1341(a1), certain defendants may, with court approval, be placed on probation pursuant to a deferred prosecution agreement. To be eligible for this type of deferred prosecution the defendant must have been charged with a Class H or I felony or a misdemeanor, and the court must make findings that:

  • Prosecution has been deferred pursuant to a written agreement, with approval of the court, for the purpose of allowing the defendant to demonstrate good conduct;
  • Each known victim of the crime has been notified of the arrangement by subpoena or certified mail and has been given an opportunity to be heard;
  • The defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude;
  • The defendant states under oath that he or she has not previously been placed on probation; and
  • The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.

Form AOC-CR-610 guides the court through the requisite findings. The longest permissible term of probation for a deferred prosecution case is two years instead of the usual five. G.S. 15A-1342(a). If the defendant completes the deferred prosecution probation term or it is terminated early by the court, the defendant is immune from prosecution on the deferred charges. G.S. 15A-1342(i).

Prosecutors are also free to enter into non-statutory deferred prosecution agreements with defendants, and my sense is that many do (comments welcome on that front). Non-statutory arrangements may not, however, include supervision by the Division of Community Corrections. State v. Gravette, 327 N.C. 114 (1990).

Based on what I’ve heard, practices vary when a deferred prosecution probationer is alleged to have violated the conditions of his or her supervision. In some districts the alleged violation is reported to the court for a hearing; in others, the defendant is referred directly to the district attorney for prosecution. Changes made to the law in 2009 (S.L. 2009-372) helped clear up what ought to happen. Under the new law, violations of the term of a deferred prosecution must be reported to the court as they are in any ordinary probation case. G.S. 15A-1342(a1). A parallel change in G.S. 15A-1344 makes clear that all probationers must receive notice and a hearing under G.S. 15A-1345 before their probation may be revoked. The change corrected what had previously been a disconnect between the first clause of the sentence in G.S. 15A-1344(d) that began “[a] convicted defendant” and the later reference in the same sentence to “charges as to which prosecution has been deferred”—if charges were “deferred,” we wouldn’t be dealing with a “convicted defendant.” The change applies to hearings held on or after December 1, 2009.

With these changes in mind, deferred prosecution probation matters should be handled just like regular, post-conviction probation cases when it comes to extension, modification, and revocation. That’s what the court of appeals said about cases supervised under G.S. 90-96 in State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”), and it seems like the same rationale would apply here.

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8 Responses to “Deferred Prosecution Probation”

  1. Hugh Hawfield says:

    Here in Union County the D.A. has always handled any noncompliance issues in reference to Deferred Prosecution cases. If the offender failed to comply a letter was sent to the D.A. addessing the noncompliance issues. In turn, the D.A. would make a decision as to whether the offender would be returned to court or not. The D.A.’s Administrative Assistant has been responsible for this process. With the new law changes, more responsiblilty is placed on the Probation Officers. The Probation officer is responsible for individuals placed on Deferred Prosecution from the begining of the case to the end of supervision of the case. Therefore the officer is responsible for supervision throughout the term. I believe this will give DCC more control over these cases by allowing the officer to address consequences to noncompliance issues and not just send the case back to the D.A. It will also allow the officer to address the courts directly and explain face to face any issues in these cases.

  2. Josh says:

    Jamie – Just wanted to thank you for all your many posts. This one and all the other many posts that I have stumbled upon that held some answers, no matter how small, are greatly appreciated and Always helpful and easily searchable. Thanks again for the assistance, really helps as a young attorney.

  3. Don B says:

    My son received a deferred prosecution for intent to distribute drugs and was placed on probation. He completed his probation a couple of months ago and has stayed out of trouble. What is the procedure for having that expunged from his record now and can I help him with it or is it a matter that must be exercised by an attorney? Thanks much for you willingness to share your knowledge and expertise.

  4. Jeremy S says:

    I only have one question? When you say that a defendant can’t get defferred prosecution if they have previously been on probation before, mean someone who had been on probation as a juvenile more than ten years ago could not be eligible? I have a family member that has charges and has no record, except traffic violations. They were on probation when they were 12-13 years old. And now being in their 30s, defferred prosecution could be a good thing for them if they could get it.

  5. John dough says:

    Hi Mr. Markham,

    Do you happen to know the answer to Jeremy’s question above? I know someone in the exact same situation and would appreciate any info you could proffer.


    • Jamie Markham says:

      John dough: I do not think juvenile probation would disqualify a person from a deferred prosecution under G.S. 15A-1341(a1). The fact of the prior juvenile probation could factor into the prosecutor’s decision to offer the deferral, but I don’t view it as an absolute bar. Sorry for the delayed response.

      • John dough says:

        Thank you for the response. This whole DV system is completely biased against the “defendant”. I understand the necessity for this legislation, but it has gone too far; such that there is not one shred of fairness for those accused and innocent of DV.

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