Distinguishing between Deferred Adjudication and Probation

A great deal of confusion exists among people about the legal and practical differences between probation and deferred adjudication, and the consequences of a motion to revoke being filed in either matter. A good starting point is to identify some of the similarities shared by the two.

Both are possible resolutions of a criminal case being filed against an individual or corporation. Both involve some form of community supervision. Often, the conditions of either type of disposition can be agreed to in a plea bargain. In either case the Judge is allowed by law to set the conditions of community supervision. In doing so the court may impose any reasonable condition designed to protect the community and victim, or designed to punish, rehabilitate, or reform the defendant, including confinement in jail, community service, therapy, and a fine. All of these conditions can be negotiated between the attorneys and the Court. It is important to have an attorney who is skilled and knowledgeable about these conditions, because a violation can have serious consequences to the defendant.

The placement of a defendant on deferred adjudication, as opposed to probation, varies in both procedure and result. I tell people to think of it this way: defer means to “put off”, “adjudicate” means to find guilty. Therefore, in the case of deferred adjudication, the defendant is never found guilty as long as he successfully completes the probation. Before a court may defer further proceedings and place a defendant on community supervision, the court must receive a plea of guilty or no contest from a defendant. The plea must occur before trial, as a jury cannot grant deferred adjudication. With deferred adjudication there is no finding of guilt. At a later date, if it is believed that that defendant violated a term or terms of the probation, a “Motion to Adjudicate” is then filed by the State. A defendant is entitled to a hearing before the Court to make this determination. If the Court finds by a preponderance of evidence that a term was violated, a finding is guilt is then entered and the defendant is then sentenced.

In contrast, a defendant receiving “straight” probation is immediately found guilty. The Court then sentences the defendant to a number of years in prison, but probates the sentence and places the defendant on community supervision. This finding of guilt can come from a judge through acceptance of a plea agreement, or after a guilty verdict by either a jury or judge.

An obvious benefit to deferred adjudication is that if the defendant successfully completes the term of community supervision, then there is never a conviction, and the case is ultimately dismissed. However, the down side is that if a court determines that a defendant violated the terms of supervision, the court may adjudicate the defendant (resulting in a conviction) and is free to consider the full range of punishment. For example, if a defendant receives a five-year deferred adjudication for a second-degree felony offense that carries a maximum sentence of 20 years upon revocation a judge could sentence a defendant to the maximum punishment of 20 years.

Although a straight probation results in a conviction upon sentencing, if a defendant’s probation is revoked, the court is limited to sentencing a term of incarceration equal to or less than the original term of the straight probation, which can never be more than 10 years.

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