A Guide to the Different Types of Probation

January 19, 2014

I find many of my criminal clients, who have never been in trouble with the law, have little to no knowledge about the different types of probation offers made to them by the State. This post focuses on the differences between the types of probation, and the benefits and downsides to each.

1. Deferred Probation (AKA a “Deferred Sentence”)

A deferred sentence, aside from an outright dismissal of the charge(s), is normally the best outcome for the defendant in his or her case. A deferred sentence is where the defendant pleads guilty to the charge(s) against him or her, but is not found guilty or sentence by the Court on the date of the plea. Instead, the Court defers, or puts off, finding the defendant guilty and sentencing for a period of time. During the period between pleading and sentencing, the defendant is on probation, and must follow certain rules and complete certain conditions.

The largest benefit to a deferred sentence is if the defendant successfully completes the terms and conditions of probation, the case against the defendant is dismissed on the sentencing date. During the time between pleading and sentencing, the defendant is not a “convicted felon.”

Another benefit to receiving a deferred sentence is the possibility of having the arrest and charge completely removed from your record through an expungement. Whether someone is eligible for an expungement following successful completion of a deferred sentence hinges on an number of factors, which go beyond the topic of this post.

A deferred sentence can be a “double-edged sword.” The danger of a deferred sentence comes into play if the defendant screws up while on probation, prior to his or her sentencing date. When this happens, the State files an “Application to Accelerate Deferred Sentence” in the defendant’s case, alleging the defendant violated the terms and/or conditions of probation by doing X, Y, and Z. When the district judge sentences someone on a violation of a deferred sentence, the judge is not confined to the length of the deferred sentence. For example, Robin Banks is sentenced to a 5 year deferred sentence (sentencing will occur 5 years minus one day from the date she pleas) for Second Degree Robbery. The range of punishment in Oklahoma for Second Degree Robbery is up to 10 years in the Oklahoma Department of Corrections. During the third year of her deferred sentence, Robin is charged with grand larceny, a violation of the conditions of her deferred sentence. When Robin goes before the Honorable Hammer U.R. Ace on the State’s Application to Accelerate Deferred Sentence, Judge Ace can sentence Robin to up to 10 years in prison. Judge Ace can also accelerate Robin’s deferred sentence to a suspended sentence, which brings us to the second type of probation.

2. Suspended Sentences

A suspended sentence is straight probation in lieu of a prison sentence. It is a finding of guilt and a conviction for the charge(s) to which the defendant pleads guilty. Often, a suspended sentence comes in the form of a “split sentence.” A split sentence is where a defendant is sentenced to both prison time and probation. An example of a split sentence would be a 10 year suspended sentence, with the first five years to do in prison. Once the defendant is released from prison on the 5 year term, he or she is still on probation for 5 years. The probationary period begins the date the defendant pleads guilty to the charge(s), and ends however many months or years from the date the defendant pled guilty, minus one day.

The benefit to a suspended sentence is that the defendant is given probation instead of prison time. If the defendant violates the terms and/or conditions of his or her probation, the State files an “Application to Revoke Suspended Sentence,” which states the alleged violations. If the defendant is found to have committed the violations alleged, the next stop for the defendant is prison for all or part of the term of the suspended sentence. When sentencing someone on a violation of a suspended sentence, the district judge cannot sentence the person to a prison term that is longer than the suspended sentence originally received.

If you have further questions regarding this topic, please post your inquiry and I will do my best to answer it. If you have a suggestion for next week’s topic, let me know!