Many states have programs often referred to as deferred adjudication.
Generally, the idea is to help out first time offenders whom the judge thinks may have just made a mistake and may not come in contact with the criminal justice system again.
Under most programs, there may be enough evidence for a finding of guilt.
But, the judge does not enter a formal conviction.
Instead, the judge gives the defendant some time, sometimes a year, to keep his or her record clean.
The defendant comes back to the court, and the charges are dismissed.
In other forms of the program, the defendant enters a plea of guilty to the charge brought by the prosecutor.
After a time of good behavior, the defendant comes back, and the charge is lowered.
For example, a defendant could plead guilty to grand larceny(a felony), serve a year probation, and come back to have the charge reduced to petit larceny (a misdemeanor).
While these deferred adjudication programs are there to help a criminal defendant, they can have severe adverse consequences for non-citizen defendants.
The reason is the definition of "conviction" under immigration law.
It includes not only a formal finding of guilt, but any admission of guilt, including a no contest plea, where the judge imposes some sort of punishment.
Under this broad definition, if a defendant admits guilt for the purposes of receiving some form of deferred adjudication, and the judge imposes some sort of sentence, then the defendant has received a conviction.
The punishment can be anything from probation to a fine to a suspended sentence.
It does not matter.
It is still a conviction.
Nor does it matter that under state law, if the time of good behavior is met that the charges will be dismissed.
If the defendant admits to the crime, the judge imposes some form of punishment, but withholds a formal finding of guilt to see if the defendant has kept his nose clean, that is still a conviction for immigration purposes.
This can create difficult issues for a non-citizen defendant.
For example, if a defendant is a permanent resident, under U.
S.
immigration law, that defendant can be deported for an aggravated felony.
But, if the defendant has only one crime involving moral turpitude that has happened more than five years after becoming a permanent resident, then the defendant is not deportable.
Now, in this example, let's assume that the defendant is charged with grand larceny, a felony.
This is the first time the defendant has gotten in trouble with the law, and the judge believes that it is likely the defendant has learned his or her lesson and won't commit a crime again.
The defendant is offered deferred adjudication.
He or she pleads guilty to grand larceny, the judge imposes a one year jail sentence, which is suspended, and give the defendant probation for one year.
At the end of probation, if the defendant has shown good behavior, a finding of guilt for petit larceny, a misdemeanor, is entered, and the jail sentence is reduced to two months, all which is suspended.
From a criminal law perspective, this could look like a good deal.
But, from an immigration perspective, it is a problem.
That is because a crime of theft where there is a sentence of one year or more is an aggravated felony, whereas a crime of theft where the sentence is less than a year is just a crime involving moral turpitude.
Once there has been an admission of guilt to grand larceny, and the imposition of punishment, there is a conviction of an aggravated felony and Immigration and Customs Enforcement may commence removal proceedings.
Indeed, because there is a conviction for an aggravated felony, the mandatory detention provisions of the law will apply.
This means that the non-citizen defendant, who thought he or she just had to serve a year of probation, will now be detained during the pendency of his or her immigration proceedings.
That could mean that the defendant will be unable to check in with a probation officer, and thus be in technical violation of probation.
The end result could be that the defendant is deported before he or she can even have an opportunity to fulfill the conditions of the deferred adjudication program, and thereby lose any benefit that the prosecutor and judge thought they were providing.
The lesson of all of this is that a non-citizen defendant must have accurate immigration advice in order to make an informed decision.
It may also mean that a non-citizen defendant is better off pushing for a criminal trial, thereby forcing the prosecutor to meet the standard of beyond a reasonable doubt, than accepting some form of deferred adjudication.
But, this decision can only be made after consulting with a knowledgeable immigration lawyer who can explain the risks and benefits.