Russell Hebets Sept. 1, 2011

A Political Drama over a Deferred Judgment

What is a Deferred Judgment and Sentence?

Here in the Colorado state and municipal court systems, one of the most common dispositions of a criminal case is a deferred judgment and sentence. A deferred judgment is essentially a contract between the defendant and the prosecuting attorney. Here’s how it works: A defendant agrees to plead guilty to the charge he is charged with, but the conviction and sentence are deferred. The defendant is required to complete a specified period of either supervised or unsupervised probation, and depending on the type of case, may have to complete court ordered requirements such as community service or alcohol classes. If the defendant completes these requirements and does not commit any new offenses during the period of the deferred judgment, the plea of guilty originally entered into is withdrawn, and the case gets dismissed at the end of the specified time period. Because the conviction and sentence are deferred, as long as the defendant completes his/her requirements, there will be no conviction. The best part is that after dismissal, the defendant can seal the criminal record which prevents it from being found on a background check. A deferred judgment is most commonly offered by the prosecution to a defendant with no criminal history. It is usually viewed as an opportunity for a defendant to keep their criminal record clean even though they are pleading guilty to a charge. Most district attorneys also view it as a one-time deal- it is somewhat rare for a person with a prior deferred judgment to be offered another one on a subsequent offense.

What happens if a defendant violates the terms of the deferred judgment? This is usually done if the defendant picks up a new offense or does not complete his court ordered requirements. The result is not good. Because the defendant already pled guilty to the offense, the deferred judgment is revoked and the defendant is now convicted and can be sentenced by the judge on the charge. The conviction is permanent and will show up on a criminal background check.

Deferred judgments are not offered in every case. In the case of serious or violent offenses, prosecutors may want to make sure a defendant suffers a permanent criminal conviction. Also, they are very rarely offered if a person is charged with DUI or DWAI, even for a first offense. It also depends on the jurisdiction- there are some district attorney’s offices that don’t offer them at all.

The bottom line is that a deferred judgment is a great option for a person who has committed a crime but who wants to keep a conviction off their permanent record. As one can see, a criminal defendant has everything to gain by completing a deferred judgment and everything to lose by violating it.

A Political Incident Over Deferred Judgments

This week in Pueblo a fascinating political drama unfolded when the Pueblo election board decided whether or not to allow a candidate with a deferred judgment for a felony conviction to run for office. The city council candidate was Josephine Gonzales-Gifford, and the board decided that a deferred judgment was the same as a felony conviction. This article in the Pueblo Chieftain provides the facts of the case.

The facts of the case seem undisputed by both sides. Josephine Gonzales-Gifford spent welfare overpayments, which is a felony, but she received a deferred judgment and successfully completed its requirements. For those who are unfamiliar, a deferred judgment is a plea agreement. The defendant enters a plea of guilty and completes a probation period. If the probation is successfully completed the plea is withdrawn and the charges are dismissed, but if they are not successfully completed the defendant is sentenced to the original charge. So, in the case at hand Josephine Gonzales-Gifford had the charges dismissed because she successfully fulfilled the requirements of the court.

The Pueblo election board was asked to determine if this judgment disqualified Gonzales-Gifford from running for city council. The Pueblo city charter in section 2-4 states, “A person who has been convicted of a felony shall not become a candidate for the Council.” The Pueblo election board concluded that a deferred judgment was the same as a felony conviction. However, this seems to be a clear misunderstanding of a deferred judgment. In a deferred judgment the plea of guilty is withdrawn, therefore, you have not plead guilty to a crime. The entire goal of a deferred judgment is to avoid a conviction.

The importance of sealing records

The most important lesson from this is that it is critical that a defendant get their record sealed after a deferred judgment. Ms. Gonzales-Gifford has informed us that in her case her record was not sealed. While it is still true the deferment should not have been held against her many employers will apply similar prejudicial regard to anything on a background check. Even though she fulfilled all the requirements for a deferred judgment going an extra step and getting the record sealed would have prevented any opportunity for misunderstanding. It is clear that with your record sealed no employer should have access to the conviction, and it is not wrong to say you have never been convicted of a felony once your record is sealed. The effect of a sealed record is that the record is treated as though it never existed. If you have a deferred judgment in your past, but have not sealed your record, you may want to contact a legal professional to start the process today.