If you are facing criminal charges like a felony or misdemeanor in North Carolina, you could face time in prison or hefty fines if you are convicted. But you may be able to avoid these penalties if you choose deferred prosecution. Many people are unfamiliar with this option until they find themselves in a position where they could benefit from it.

We’re going to explain how deferred prosecution works and how it can help defendants in certain situations. We’ll also tell you how the criminal defense team at Kirk, Kirk, Howell, Cutler & Thomas, can help if you stand accused of a crime where deferred prosecution may be an option.

deferred prosecution in nc

What is Deferred Prosecution in North Carolina?

Deferred prosecution is an agreement that the prosecutor and defendant make for the charges to be dropped after the defendant meets certain requirements. These requirements can include:

  • Restitution
  • Community Service
  • Probation
  • Not committing other crimes

Under this type of agreement, the defendant waves their right to a jury trial and typically will admit guilt.

Eligibility Requirements for a Deferred Prosecution

Under North Carolina G.S 15A-1341(a1) a defendant is only eligible for a deferred prosecution agreement if:

  • They will be unlikely to commit other crimes.
  • They do not have a prior conviction or probation.
  • The charges fall under the misdemeanor category or low-level felony.
  • The victim must be notified of the agreement and not object to it.

As long as all of these requirements are met, a defendant is eligible for a deferred prosecution program.

The Benefits of Deferred Prosecution

Deferred Prosecution in North Carolina presents a wealth of benefits for defendants, prosecutors, and the wider community. For defendants, this process opens up the potential to evade conviction and the associated collateral consequences that come with a criminal record, such as diminished employment opportunities, limitations on housing and financial resources, and disruption to familial involvement. By exploring alternatives to conviction and imprisonment, deferred prosecution promotes public safety as it facilitates access to community resources for defendants. These resources can in turn reduce the likelihood of criminal reoffending and other related issues, such as substance misuse.

Benefits to Victims, Taxpayers, and Others

Proponents of deferred prosecution believe it can be an effective tool to reform and help those who will be grateful for a second chance after committing a criminal act. When used appropriately, deferred prosecution can spark a positive change and allow someone to learn from their mistake.

Defendants can also benefit because they avoid having a criminal conviction on their record that can impact their employment opportunities, educational opportunities, as well as housing, and other aspects of their personal lives.

Besides benefiting the defendant, deferred prosecution can also benefit the victim, taxpayers, and others. Any victims who suffer personal property loss or monetary loss will be compensated by the offender through restitution.

The courts and police benefit from deferred prosecutions because there are fewer resources needed and less time needed for pretrial hearings and meetings. Upon successful completion of a deferred prosecution, there should be less of a chance of a repeat offense, thus reducing crime.

The Formal Deferred Prosecution Process

The Formal Deferred Prosecution Process in North Carolina is a strategic legal procedure that allows a prosecutor to establish a pre-trial written agreement with the defendant. This documented arrangement stipulates the conditions by which the defendant can attain a dismissal of charges. In this process, the defendant may or may not acknowledge their responsibility or guilt concerning the charge, yet this admission doesn’t correspond to a plea of guilty. Thus, the defendant reserves the right to challenge the allegations in court if they fail to fulfill the terms of the deferral.

The foundational case for this practice is State v. Ross (2005) 173 N.C. App. 569, 620 S.E.2d 33, which set a precedent in affirming that even under the deferral process, the defendant retains the freedom to proceed to trial. The Formal Deferred Prosecution Process provides a means for a resolution that may potentially avoid the full course of a trial, but it also secures the rights of the accused to maintain their plea until due process is served.

Role of Federal Prosecutors in a Deferred Prosecution Agreement

Under a deferred prosecution agreement, the federal prosecutor will bring charges against the defendant but agree not to pursue them. As long as the defendant satisfies their end of the agreement, the federal prosecutors will agree to drop all charges.

If the defendant does not hold up to their end of the bargain, then the federal prosecutor has the right to go ahead with the charges. This could result in a conviction and a criminal record for the defendant.

Formal Deferred Prosecution Agreements (DPAs)

Formal Deferred Prosecution Agreements (DPAs) in North Carolina provide a voluntary, alternative approach to traditional court adjudication. In these agreements, the prosecutor promises to grant immunity in exchange for the defendant’s commitment to satisfy stipulated requirements. Such agreements are often employed in cases like corporate fraud, where instead of proceeding to trial, the matter might be resolved through a DPA. Under the terms of the DPA, the defendant may agree to settle by paying fines, implementing necessary corporate reforms, and offering complete cooperation with the ongoing investigation. Once the defendant fulfills the outlined requirements, the charges can be dismissed. Thus, the DPA provides a beneficial framework for both the prosecution and defense, offering a resolution mechanism that minimizes potential litigation costs and delays, while also ensuring appropriate measures are taken to rectify the alleged misconduct.

Common Components of a Deferred Prosecution Agreement

As mentioned above, a deferred prosecution agreement involves the government bringing charges against the defendant, but not moving forward with them as long as the defendant follows certain requirements. When those requirements are not met, the government can continue to prosecute.

A defense attorney and prosecutor typically negotiate the agreement. In most cases, a defendant must not have any prior convictions. Once everyone agrees to the terms of the agreement, the defendant, prosecutor, and attorney must sign it. The case will then be closed during a time specified in the agreement. During this time, the defendant’s conduct must adhere to the conditions of the agreement.

When someone enters a deferred prosecution agreement, they are not on probation. This means they are responsible for making sure that all of the conditions are met on time. Once they do, the prosecutor will drop the charges and the defendant may be eligible to have their case expunged.

Negotiating and Drafting a DPA

The prosecutor and defendant (defendant’s attorney) will negotiate the terms of the DPA. The terms will depend on the criminal act and what each side believes is fair. The defendant agrees to the terms of the agreement if they want to avoid trial and a possible conviction. The terms can include requiring the defendant to admit guilt, pay restitution, or take certain actions to prevent future criminal acts.

Criticisms and Controversies Surrounding Deferred Prosecution

While there are benefits of deferred prosecution, there are also some who criticize the deferred prosecution program because they believe that it allows people to avoid the consequences of their choices. They believe it also does not give the victims of a crime the justice they deserve.

Deferred prosecution has also been criticized because some say it helps people avoid the consequences of any wrongdoing. In the case of corporate wrongdoing, one criticism is that DPAs allow corporations to avoid any criminal liability. For these reasons, some are not proponents of a formal deferred prosecution agreement.

plea deals and expungement in nc

Understanding the Alternatives to Deferred Prosecution

Deferred prosecution is just one option when facing charges. Other avenues can also be pursued. Recognizing the differences can help you to make the right decision for your case.

Deferred Prosecution vs Adjudication

Deferred adjudication is a type of probation where the defendant goes before the judge and will plead guilty or no contest. The plea is set aside so the defendant is not actually found guilty or convicted at that time. The adjudication of the case is deferred.

Deferred adjudication is generally supervised, similar to probation. A probation officer is typically assigned to the case. There will be check-ins and tasks to complete. When the term of deferred adjudication is successfully completed, the charges will be dismissed, and the defendant avoids conviction. The length of time for the deferred adjudication will differ depending on the crime committed.

DPA vs Plea Agreement

A plea agreement is different than a DPA because, under a plea agreement, a defendant is convicted of the crime they are charged with. The court oversees the terms of the plea bargain where a DPA is generally unsupervised. A defendant who agrees to a DPA is not convicted of any criminal charges. The charges are dismissed if the company complies with its obligations under the DPA.

Contact the Criminal Law Attorneys at Kirk, Kirk, Howell, Cutler & Thomas Today to See If A Deferred Prosecution is Right For You

If you are facing criminal charges and want to try to avoid conviction, the team at Kirk, Kirk, Howell, Cutler & Thomas can help. Let our experienced team review your case to help you determine if you qualify for deferred prosecution under the criminal justice system.

Schedule a consultation with a lawyer today by calling  919-615-2473 for our Raleigh office or 919-365-6000 to reach our Wendell office, or fill out the form below. You can also reach out to us online to learn more about our services and how we can help you.

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Jeff is an experienced criminal defense attorney in Raleigh. He has effectively represented the citizens of Wake County and all over North Carolina since 1989.

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