Generally speaking, there are two types of probation, regular and deferred adjudication (sometimes simply called “deferred”). Although probations are very similar there are some important differences. The main difference is that the conviction and sentencing are deferred (postponed), in a deferred adjudication probation.
Which Type of Probation Should You Choose?
Sometimes you can choose what type of probation you get, sometimes not. In a jury trial, a defendant is only eligible for probation from the jury if the defendant has never been convicted of a felony in this or any other state. Unless a jury assesses a defendant’s punishment at confinement for greater than 10 years, the judge may grant probation to the defendant.
Many Texas criminal defense attorneys consider deferred adjudication to be the more lenient punishment because the defendant avoids a conviction if the probation is successfully completed. But deferred probation can be a nightmare as well. If the defendant does not successfully complete a deferred adjudication, he or she can be assessed the maximum sentence available by law.
How bad can that be? Consider this example: A 22 year old young man gets 6 years’ deferred adjudication for the offense of delivering cocaine. He handed $10 worth of cocaine to a pretty girl at a party. Too bad she was an undercover cop. He stays out of trouble for 5 years and 10 months – only 2 months from the end of his probation. Then he tests positive for marijuana during a random urinalysis, or picks up an assault charge fighting a guy outside a bar. The judge can now sentence him to 99 years or life on the cocaine case, and he isn’t entitled to a jury trial, or even an appeal. Deferred probation can be a major nightmare under circumstances like this.
Your Sentencing Options
You may view probation as a lighter sentence than serving jail time, but probation can be a real pain. Some of our clients charged with DWI choose to spend a short time period in jail to avoid the hassle of probation. Read more about this strategy in our article on choosing jail over probation for a DWI.
Sentencing, including probation, may be done in any of three ways:
- Have the jury set the sentence,
- Have the judge set the sentence, or
- Have your criminal defense lawyer work a deal (plea bargain) with the prosecuting attorney.
You, with your defense attorney’s advice, should choose whichever way you feel will get the best sentence.
Plea bargains have two advantages: (1) they are quicker, so many attorneys charge less for them (2) there are no risks – you know what the deal is going into the hearing, so you can’t get hammered by an unsympathetic judge or jury.If a defendant hasn’t committed a horrible crime and has a fairly clean criminal record, he is likely to be offered probation during the plea bargaining. In many cases, the prosecution will allow the defendant to choose between regular probation and deferred. If the prosecution insists on one type of probation and the defendant wants the other, the defendant has to choose between (a) accepting the prosecutor’s offer or (b) letting the judge or jury decide. If the defendant chooses to let the judge or jury decide, he or she may not get probation at all!
You have to make some tough choices when negotiating a plea bargain. An experienced criminal defense attorney can give you a rough estimate of your odds of receiving jail, probation, or neither. You’ll have to decide whether to accept a deal based on your attorney’s advice and your appetite for risk.
As a final word of advice: If you have a choice, only choose deferred adjudication if you know that you can stay out of trouble, follow all of the rules and successfully complete your probation. Otherwise, take the safe route and take regular probation.