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“Deferred felony”

A deferred felony is a felony whose final sentencing decision is postponed until the defendant is given the opportunity to serve his or her probation. If the defendant completes his or her probation successfully, all charges are dismissed, and the defendant avoids a felony conviction. Perhaps most importantly, with a deferred felony, the felony conviction is striked from the defendant’s criminal record if probation is completed successfully.

It is common in plea bargains to include the option of a deferred felony. Often, defendants will exchange a misdemeanor that requires a shorter prison term to a deferred felony conviction that carries with it a longer prison term in the event that probation is violated.

However, often in practice deferred adjudications fail to honor the terms of the original adjudication and responsibly punish the offender. Courts have granted termination of a sentence long before the amount of time actually required to be served in the initial ruling. For example, thousands of cases are terminated early each year in Houston courts, some even within days or weeks of sentencing. It is suggested that early terminations often occur when the judge does not fully read the details of the termination request presented by the defendant.

Since the late 1990’s, Oklahoma district courts are required to provide detailed information to the sentencing commission involving any deferred felony conviction, reinforcing the seriousness of the deferred felony. Just because a deferred felony allows a defendant to walk away early with a terminated sentence if he or she successfully completes parole or probation, this should not suggest cause for the offense to be taken lightly. The new information Oklahoma courts require includes aggravating factors, or “offense enhancers,” considered to be necessary to treat the offender's crime and sentence more seriously. Such information might include whether a crime involved a firearm, whether the victim was a senior, a child, someone mentally or physically disabled, or if there was torture involved during the commission of the offense. Such factors are now included following the state’s “truth-in-sentencing” punishment guidelines.

In some cases, a deferred felony is considered more serious than a misdemeanor conviction, but more often than not a deferred felony lifts certain restrictions on the offender's behavior that a felony would otherwise require. For example, first-time welfare-fraud defendants in Colorado have been known to receive a deferred felony for their crimes, enabling them to wipe their records clean after four years. Convictions for most other non-serious crimes, however, are not entitled to be deferred. An example is a domestic-violence case that involves violent behavior. Although common, it cannot be plea bargained to a misdemeanor nor can it result in a deferred sentence if applied.

Another instance is that Oklahoma allows individuals convicted of deferred felonies, but not felonies, themselves, from working in a classroom at any point in the future.

Furthermore, during a plea bargain, many defendants will not accept a deferred felony when a misdemeanor is an option. According to one lawyer, when defendants had a choice between accepting a deferred felony with 90 days of jail time, or a misdemeanor requiring six months of jail time, they opted to spend the six months in jail.

In 2007, Steven Powers had a deferred felony put back on his criminal record after being convicted for faking the disappearance of a Marine lance corporal. The original deferred felony was a 2004 burglary charge.

Iowa courts found that a deferred felony did qualify as a conviction when adjudicating the case of Dana Reth. Reth was convicted of a federal charge of possession of ammunition and firearms when he already had an outstanding deferred felony judgment he obtained two months earlier for stealing $150,000 from his employer.

 

Sources

"Truth-in-Sentencing Data to Be Gathered," Tulsa World, 30 November 1997

"More probation problems found/But investigation fails to find evidence of illegal judicial activity,"
Houston Chronicle, 25 June 1997.

"Frost's deal gets mixed reaction," Gazette Telegraph , 8 April 1989.





   
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