In Oklahoma, you can receive two kinds of probation: a deferred sentence or suspended sentence. The two are often confused, but have very different implications.
When you first receive a deferred sentence, the judge is “withholding a finding of guilt and deferring your sentence.” At the end of your deferred sentence, your case is dismissed. This makes it sound like your case didn’t happen, but that isn’t quite true. Let’s go over what a deferred sentence is, how to get a deferred sentence, and its legal implications.
A deferred sentence is a form of probation that provides an automatic partial expungement at the end of the probation. This is different from a suspended sentence, which is also probation, but doesn’t come with an automatic partial expungement upon successful completion. With a deferred sentence, you are legally allowed to say the case didn’t happen as long as you have successfully completed your probation.
A deferred sentence is offered by the prosecutor when it is your first criminal case. In some instances, a prosecutor may offer you a second deferred sentence, such as when a long period of time has passed since your last criminal case. This is VERY rare, and typically you only get one deferred sentence.
For felony cases, a statute prevents you from receiving a second deferred sentence. Even if the prosecutor in your case wanted to give you a deferred sentence, they wouldn’t be able to.
There are some charges that are not eligible for a deferred sentence, even if it is your first case. For example, any charge that requires you to register as a sex offender can’t receive a deferred sentence.
Another example of a charge that is ineligible for a deferred sentence is a DUI when you have a commercial driver’s license. Most of the time, your first DUI will receive a deferred sentence. However, Oklahoma has an anti-masking statute that prohibits deferred sentences for any driving-related offenses for those with a commercial driver’s license.
A plea deal with a prosecutor isn’t the only way to receive a deferred sentence. You may also blind plead to the judge, where you plead guilty without agreeing to a punishment with the prosecutor. This allows the judge to set the punishment after hearing arguments from both sides. If you choose to blind plead, the judge can also give you a deferred sentence.
When you plead to a deferred sentence, you are not technically receiving a conviction. The judge will even tell you they are withholding a finding of guilt, and will dismiss your case at the end of your probation. A dismissal is like the case never happened, which is what happens if the DA files a case against the wrong person. This dismissal is not guaranteed on a deferred sentence, and it only happens if you successfully complete all requirements of your probation.
The requirements of your deferred sentence will depend on your case. You will always have some type of probation. This probation can look different depending on your county — some require urinary analysis each month, while some will not. Others will require community service hours, while others will not. Your probation will most likely also include the completion of some type of course. This could be rehab, or a course designed to help you manage your anger. Most importantly, you can’t receive any new criminal charges or you will have “violated” the probation and lose the deferment of your sentence.
Upon successful completion of a deferred sentence, you get an automatic partial expungement. This means you are legally allowed to say the case didn’t happen. However, it doesn’t come with all of the benefits of a full expungement. A full expungement will remove your case from Oklahoma State Courts Network (OSCN), and will further aid you in removing the case from your criminal record.
This isn’t automatic with a deferred sentence, and you must apply for a full expungement after your successful completion of your deferment. There are different requirements for a full expungement, so take our free expungement quiz to see if you are eligible.
Unfortunately, this is a complicated question. Remember, a deferred sentence is not a conviction, but still exists on your record. A previous deferred sentence can always be used to prevent you from receiving another deferred sentence.
A former conviction can also be used to enhance the punishment of a later crime. For example, your first DUI will always be a misdemeanor, but your second DUI will be a felony. If you get a deferred sentence on your first DUI, most counties will still charge that second DUI as a felony.
Some counties in Oklahoma will not use that first deferred sentence as a way to enhance your second case to a felony, making the application of this statute different from one county to the next. It comes down to a difference of opinion between DAs.
Some counties choose not to use a first DUI that received a deferred sentence because they read the statute literally. The DUI statute requires a prior conviction in order to file the second DUI as a felony. A deferred sentence isn’t a conviction; on the contrary, a judge will specifically say during the plea that they are withholding a finding of guilt and pass judgment until the end of probation. Upon the successful completion of probation, the judge says the case is dismissed. This is certainly not a conviction.
Other counties look toward the intent of the statute. The statute wasn’t meant to give people two DUIs before a felony. It would allow you to receive one DUI with a deferred sentence, a second DUI with a conviction, and your third DUI would be a felony. The statute clearly didn’t intend for that to be the case.
This creates a very complicated position, because the statute isn’t being applied uniformly. When defense attorneys argued this inconsistency with prosecutors, the solution prosecutors offered was to stop offering deferred sentences on DUI cases.
Sometimes, a full expungement doesn’t prevent the prosecutor from filing the second charge as a felony intentionally, but the prosecutor simply can’t find the first charge. This is because an expungement is designed to remove a charge from your history, and make it more difficult to find.
This makes it harder on the prosecutor also, and inevitably ends up with some cases being filed as misdemeanors even though they are eligible to be filed as felonies. While it is harder to find, it is not impossible. Your previous case will be removed from OSCN, but law enforcement agencies have access to a separate system which will show previously expunged cases.
A deferred sentence is not considered a conviction. However, it can be used to enhance your charges in some circumstances. While a deferred sentence does end in a partial expungement, it is always a good idea to move forward with a full expungement to remove the record of ever being charged with a crime. Even if your case is expunged, it can be used by law enforcement when charging cases or determining punishment for other cases.
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