Deferred Prosecution Probation

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.

33 thoughts on “Deferred Prosecution Probation”

  1. 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. 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. 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.

    • In order to get the proper forms filed and get before a judge to have the charges, which were held in abeyance, dismissed and the record expunged, you have to hire a lawyer. This is not fair as the statues call for the dismissal after completion of all requirements, but the system is set up so that you have to use specific forms and get a hearing, which a pro se litigant will find virtually impossible. So, poor people who have kept their end of the bargain are left with a record until they can afford a lawyer to force the court to honor it’s bargain. DA’s will not cooperate, their job is to convict you only, and clerks, by law, will not provide the forms required. Not right in any sense.There should be an automatic procedure for the state to keep it’s promise once conditions have been met..after all, the case is not really closed until all aspects of the agreement have been honored.

      • Ritchie , Your comment about DA’s being there to convict is correct however it is only with their approval a person charged with a crime can participate in the Deferred Prosecution Program . Now with this being said often times after all terms are successfully met they will assist in any way they can to help you get the charge expunged. They are really not bad people or mean. After someone completes their time I recommend they go introduce them selves to the DA himself and the Senior ADA and thank them just as a way to get face time and let them know your appreciate them allowing for this program . Then you can represent yourself in getting this expunged it just takes reading and researching .

      • Many Counties have self-serve centers to help you fill out the paperwork without a lawyer. That being said unless you have a friendly clerk guide you it could be confusing on what to do and how the process works. Be aware there is now a $175 filing fee to expunge cases dismissed via Deferred Prosecution.

        • Jason, could you provide me with a county or counties that assist in completing the necessary paperwork for an expungement. Our agency operates several criminal justice programs and this has been a topic of discussion at our board meetings. We have a formal deferred prosecution program and this would be a great follow up to ensuring a successful participant’s crimnal record is expunged.

  4. 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. 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.


    • 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.

      • 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.

  6. my son recently died in a wreck and the investigative finding are being labeled as street competition.(he was the driver)the passengeer in my sons vehicle had stopped a friend of his on the road and asked “when we gonna line em up?” Thsi same passenger was involved in a street racing accident 15 months ago that resulted in the deaths of 2 other teens. Again he was the passenger but also instigated that race.(he was the one who counted down the race in teh first accident) He was charged with aiding and abetting a prearranged street competition in my son’s accident. I fully acknowledge taht my son was driving and that he is responsible for his actions. That being said anyone who knows my son can attest to the fact that this would have been totally out of character for him. The DA wants us to consider offering a derferred prosecution to my son’s passenger. I feel that something needs to be done about this kid and that a deferred prosecution is not going to send this kid a messgae at all. I would almost rather take my chances and make him sit through a trial. Thoughts?

    • First of all, I’m sorry for your loss!! I read about this young man and enough is enough,your family deserve some peace of mind that your son didn’t just die, his life matter!!! So stick to what your heart tells you and stop this from happening again to another family, 3 people had to die and he still walks free??? No my thoughts!! Many prayers!

  7. I am Currently on Deferred Prosecution, I was put on for Obtain prop by false coin?? not sure lol what happen was mother got a check in mail and said it was a tax check and that she put it in my name this year so I was like ok, Well she takes me to this guy that sells scooters and say’s he will cash it I was like ok cool and I wanted a scooter anyways, the check was for $3200 I bought the scooter and got the rest in cash which was $1700, Few days later Guy comes up and say’s the check was FAKE and so I am freaking out like holy crap, (if you haven’t realized by now my mother is a straight crook been in an out of jail) So my two years of probation is up and all the restitution has been paid back to the guy, the only thing I owe is probation fees, court costs, etc. My question is can I get this taken care of and dismissed since the guy has been paid back, I will be getting a Lawyer of course but I was wondering what your thoughts were

      • While full restitution to the victim is certainly a plus in your favor, the fees you owe are mandatory, and the judge can extend your probation to pay them. You will be violated for non-payment and it is up to you to convince the DA and the court that you are destitute and have no way to pay the fees. the court may ” remit ” the remaining fee’s if it wants to, but without your probation officer and the DA in agreement you have a slim chance. The burden of proving the inability to pay, and thus the complete lack of ” willfullness ” in non-paymet, is up to you. They cannot violate you if you are literally unable to pay now or in the foreseeable future, and if your probation was completed without incident and all that remains is fee’s you have a chance..but courts are loath to forgive fees if there is any chance of you repaying..good luck.

        • I am currently dealing with the exact same situation expect the check was 7,000+ and I went to cash it at a place (Check Cashers or something) who had my personal identification on file (no bank account at the time). I’m half a year in but I want to turn my mom and whoever helped her in. I think she has the envelope it arrived in or that her crook friend gave to her but the rest is basically on my ass for not giving her up. Any GOOD advice is appreciated.

  8. s there any way to lessen a gs 14-72(a) shoplifting charge?  What will happen usually?  This is a first offense.  I do not have a record.  I would like to keep it that way.  They said an $87 amount but the officer noticed electronics on the reciept, which is not correct, there werent any.  What should I do?  I will never do this again and never have.  I am under a lot of stress and had a lapse of judgement or something crazy.  I am so disgusted and disappointed with myself.  I don’t know what to do. 

  9. I was told in court i was getting a deferred judgment and signed the paper and now im at the point where im getting ready To come off probation and my officer is saying it doesnt look like i have a deferred judgment…what do i do

    • Hey, I’m Patrice from Washington, N.C. I’m in the same exact situation. Due to get off April 8. You got me nervous! Did you violate, or do something wrong? We need to talk, please respond.

  10. It is common practice in Mecklenburg County to place defendants on deferred prosecution through a local non-AOC sanctioned program for non-drug related crimes. It is the prosecution and program director’s understanding that the prosecution may unilaterally revoke probation without notice or a hearing. Based on the above post and your interpretation of G.S. 15A-1342 and State v. Burns, is this appropriate procedure?

  11. Hi,

    I am currently on Deferred prosecution in Onslow county NC. I am facing a violation of probation for not completing the community service hrs. I was given one extension but because of the charges can not find a good job so I been working two jobs. I completed 58 of the 72. The office is not counting 19 that were done at another facility. The circumstance around my violation are that on The last day I was not allowed to work at my current assigned facility. They were told not to allow me to work. At the place where I completed the 19 hrs they two were told the same thing but I begged to try to complete the task they allowed 5 hrs of work and the on Aug 1st was a Saturday the assigning P/O had not and was not going to submit the paper. What do I do?

  12. I was wrongfully charged in a NC county for identity theft and obtaining property by false pretense. Is friend had gotten a credit card in her name due to my credit situation and I was paying it off. I also was her landlord and worked for a management company that would evict for a conviction of any crime. My “now ex friend ” was caught in a sting operation selling prescription drugs to an undercover officer. Doing my job, I asked that my supervisor proceed with filing her eviction since we were friends. They did so, but on court day he was unable to be in court so I went, she did not show. When she found this out she filed the above charges stating my access to her personal info had been used to obtain the credit card. There was no investigation by the detective as far as speaking with me, he had the wrong address (an 8 year old one ) and last name on warrant. He never spoke with me or pulled my DMV records to find my current address, he just got the warrant. I was told by my attorney that for the $2600.00 she was saying was fraudulent that I could win a jury trial but it would be 10 to 15 times more expensive than doing a deferred prosecution and expungement. I was on unsupervised probation until the monies were paid and 24 hours of community services was completed. That has all been done and expungement in the process. Since I was fingerprinted for that charge will I ever be eligible for a concealed carry permit in NC? Thanks for your help in advance. Will see my attorney in about a mont and will speak with him, just would like to know now.

  13. Today I had court for a criminal summons for harassing text messages and phone calls to my ex husband. We have two girls together. We both write each other and sometimes randomly about things other than about our children. But never any death threats . He got mad over a text with no threats but took it to magistrate and put me in criminal court. I told state lawyer I wanted to represent myself because I knew I was not guilty. But he talked me into a deferred agreement. Only reason I chose to do this was because if I did represent myself and judge found it as harassment I could get 2 months of jail. I have never been in trouble. I am primary parent for our girls. So I took deferred agreement. I am on supervised probation for 6 months and 15 hrs community service. I’ve learned to never text my ex again. He is booted from my phone. This is warnings to all who text and have crazy exs who are only out to get you. My intentions were not to harass him. But he made everyone believe I did. I had contacted a couple lawyers they said oh it will get dismissed you should represent yourself so I went in thinking that was what I was going to do but went out feeling like a criminal. I know I didn’t do wrong but by me doing this I hope something good comes from it later..

  14. I am currently on probabtion on a deferred prosecution court order for attempting to obtain property by false pretenses my mother and stepfather are the ones who filed the charges. I am ordered to complete three months at black mountain rehab. I am currently living with my mother and am almost 80days clean working and doing well as well as trying to get visitation back with both of my sons. My parents are willing to testify on my behalf for me to not half to go away to rehab and possibly attend and outpatient treatment. How can i petition the court to change the court order? Help please i am currently fighting to keep my parental rights and was informed by an attorney going to treatment will make me look not functional when i am doing so well now.

  15. I am in the process of filling out an application that is asking about a few questions that I do not know how to, or the most correct way to answer the questions (See list below).

    The only item on my record (existing still today) is a (DD – Dismissed Deferred Prosecution) in NC.

    While not a convection, it is still on my record. I have “NEVER” had an issue with this hindering any employment situations because all terms were completed and the case was “dismissed” with no further issues. I was young at the time and in college and got a ticket for street signs (Possession on Stolen Goods) in the house that I was residing in at the time on campus. It was an house that many people lived in and as far as I knew, who knows when or how long the signs had been in the house before I got there. Now days you can go in restaurants, antique shops, malls, etc. and see old street signs hanging without anyone complaining. But the police arrived at our residence on campus one evening to tell us to turn down the music and barged in and started writing tickets to whoever didn’t run out the back door. Needless to say, I think it was a revenue generating tactic or a vindictive response by the local police putting up with college kids over the years.

    I told the D.A. the same story and that I want out of this! I told him I would get in trouble if my parents found out so he gave me the offer for a “DD”. I had no money for a lawyer or little did I know what a “DD” was. I still on the paperwork, asserted that “I did not own the signs” and agreed they be surrendered to whoever. I did not steal the signs! I did about 35hrs of community service, paid my ticket and the rest is history with no other trouble associated with this.

    Now I am being asked about questions on a state oriented application that wants to know: “Have you been placed on community supervision or court-ordered probation, whether or not adjudicated guilty?”.
    Well, I guess there was some type of probation period during community service and a year or so after. But the case has been dismissed! How do you answer this? Particularly regarding to the previous questions of: Have you been convicted of a misdemeanor or felony”, and that answer is “NO”.
    What should the probation question mean now that it was tied to a case that was dismissed?

    And what does this mean as well: “Have you received deferred adjudication? (and) Have you been granted a pre-trial diversion”.

    (List of questions I have to answer based on the issue stated above):

    Have you:
    1. Been convicted of a misdemeanor (other than minor traffic violations)?
    2. Been convicted of a felony?
    3. Pleaded no contest (nolo contendere), plead pursuant to an Alford plea, or plead guilty?
    4. Received deferred adjudication?
    5. Been placed on community supervision or court ordered probation, whether or not adjudicated guilty?
    6. Been sentenced to serve jail or prison time? Court ordered confinement?
    7. Been granted a pre-trial diversion?
    8. Been arrested or have any pending criminal charges?
    9. Been charged or convicted of, or plead guilty to a DUI/DWI/OWI or any other alcohol-related driving convictions?
    10. Been charged with a DUI/DWI/OWI or any other alcohol related driving charge that resulted in other convictions such as reckless driving?
    11. Been convicted of any ordinances(s) violations?
    12. Been required to register as a sex offender?

    Based on the “DD” I received and situation I was in (explained above), how do I answer these questions truthfully???


    • 1. Answer truthfully. 2. In your answer state that the charge was for a non violent/non drug property offense and the charge was dismissed after completing 35 hours of comm. service.
      Never lie on a job application or you could end up in another criminal charge.

  16. I was charged not arrested with a misdemeanor for filing a fake police report. I made a stupid mistake and at 43 feel like this mistake will ruin my job prospects as I am about to finish college. I cannot afford an attorney and hoping I can get deferred prosecution .I cannot believe I was so stupid.

  17. How can my son get employment with deferred probation. When companies do background checks charge pending appears. He has been assigned to jobs then let go.


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