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Understanding The Deferred Prosecution Alternative In Florida Criminal Misdemeanor Cases

Posted by on in Florida Criminal Law
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A deferred prosecution agreement is a contract between a person charged with a criminal act and the prosecuting authority, which diverts the case out of the formal criminal justice system.  If the accused individual complies with the conditions of the agreement, the criminal charges are usually dismissed at the end of the deferment period. This article will focus on deferred prosecution agreements in Florida’s Eighth Judicial Circuit, which includes Gainesville, Florida, and Alachua, Baker, Bradford, Gilchrist, Levy and Union counties.  It should be understood that the availability and requirements of a deferred prosecution agreement may vary greatly between each of Florida’s twenty judicial circuits.  For detailed information about deferred prosecution agreements in other Florida circuits, one should contact an experienced criminal defense attorney whose practice is focused in that particular judicial circuit.  A map of Florida’s judicial circuits can be found here.

What Kind of Criminal Cases Are Eligible for the Deferred Prosecution Program?

As a general rule, in Florida’s Eighth Judicial Circuit, deferred prosecution agreements will only be considered as a possible alternative in cases involving first time misdemeanor offenders.  The decision to allow the entry of a deferred prosecution rests solely with the prosecutor.  In rare circumstances, a deferred prosecution agreement may be permitted for a person with some other minor criminal history.  In addition to considering the lack of prior criminal history, the prosecutor may also consider other factors, including whether the accused individual was cooperative with law enforcement or the number of criminal law violations alleged during the incident.  An experienced criminal defense attorney will gather favorable educational or occupational background information about their client in a effort to persuade the prosecutor to permit the entry of deferred prosecution agreement.  The types of criminal cases commonly considered for entry into a deferred prosecution agreement include misdemeanor possession of marijuana, possession of drug paraphernalia, underage possession of alcohol (MIP), affray, disorderly conduct, disorderly intoxication, assault and simple battery.

What Conditions May Be Contained In Deferred Prosecution Agreements?

The length of a deferred prosecution and type of conditions required may vary depending on the type of crime charged and the circumstances.  The period of time that the agreement will cover can be as little as a couple of months or longer than a year.  Typical conditions of a deferred  agreement might include the following:

  • No New Law Violations
  • Pay Costs of Prosecution
  • Make a Charitable Donation to a specified charity
  • Complete a specified amount of Community Service
  • Complete a Specified Counseling Program
  • Pay Restitution to the alleged victim

A criminal defense lawyer for the accused person is best able to persuade the prosecutor to permit the entry of a deferred prosecution agreement and to negotiate the conditions required to successfully complete the agreement.   The typical form of a deferred prosecution agreement in a misdemeanor case in the Eighth Judicial Circuit can be seen here.

Does One Need A Criminal Defense Attorney To Secure A Deferred Prosecution Agreement?

While it may be possible to secure a deferred prosecution agreement without hiring a criminal defense lawyer, there are many advantages to securing an attorney to communicate with the prosecutor on your behalf.  In some cases prosecutors need to be persuaded that a particular case is appropriate for a deferred prosecution.   Hiring a respected and experienced criminal law advocate undoubtedly increases the chances of a favorable outcome in many cases.  Additionally, if one hires a criminal defense attorney, the accused individual may not be required to appear in front of a Judge and one can avoid the stress associated with a criminal court appearance.  Finally, a criminal defense attorney should assist in making sure that all financial obligations contained in a deferred prosecution agreement are paid on behalf of the accused, that proof of compliance is provided to all necessary parties and that the case is dismissed in accordance with the agreement.

What Happens If One Violates The Terms Of A Deferred Prosecution Agreement?

If the terms of a deferred prosecution are violated, the agreement may be revoked and prosecution re-initiated on the original charges.   Obviously, the prosecutor will not be happy if the terms of the agreement are not satisfied.  One does still have the right to a trial even if the agreement is revoked and the criminal prosecution is renewed.

What Will The Criminal History Show Upon Successful Completion Of The Agreement?

If the conditions of the agreement are successfully completed during the specified time period, the charges will be dismissed at the end of the agreed upon deferment period and the criminal history record will show a dismissal of the criminal charges.  It is important to understand that even though the criminal charges may be dismissed, it does not mean that the criminal history records have been sealed or expunged.  The criminal history records regarding the allegations will still exist, but will show that the criminal charges were dismissed.  Expunging or sealing a criminal history record in Florida is a separate legal process that may be initiated after one has successfully completed a deferred prosecution agreement.  See Expungement of Criminal History Records.

Michael Buchanan is a practicing criminal defense attorney in Gainesville, Florida, with more than 25 years experience defending people accused of criminal misconduct. He is a former president of the Eighth Judicial Circuit chapter of the Florida Association of Criminal Defense Lawyers. He is a member of the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers. Read detailed professional biography here.