Jail or prison is not always the best measure of justice, particularly if a defendant is facing conviction of a misdemeanor or minor non-violent felony. Often, a skilled defense attorney can negotiate a deferred sentence which keeps a defendant out of jail and allows him or her to avoid felony conviction.
What is a Deferred Sentence?
A deferred sentence occurs when a defendant is given probation instead of jail. In this situation, the defendant would plead guilty to the charge or charges, and the judge would defer, or delay, sentencing until completion of the probation. The terms of probation vary with each case, but common terms include:
- Community service
- Alcohol or drug treatment or counseling
- Alcohol and drug monitoring
- Anger management or counseling, or counseling for issues related to the offense
- Payment of all court costs and fees
- Obeying all laws
If the defendant violates the conditions of his or her probation, the prosecutor may file a motion to accelerate sentencing, which could result in the revocation of probation and the imposition of the jail or prison sentence ascribed to the offense.
However, if the defendant successfully complies with all terms and conditions of probation, the court's judgment will be a dismissal of the case. The court records are updated to reflect a plea of "not guilty," and the case is dismissed. While some judge's may require the defendant to appear at a final hearing, in most cases this is an automatic process.
The Expungement Process
Many people know that the court record can then be expunged; however, expungement of a deferred sentence is not automatic.
Deferred sentence record expungement, or expunction, is described in 22 O.S. 991(c):
C. Upon completion of the conditions of the deferred judgment, and upon a finding by the court that the conditions have been met and all fines, fees, and monetary assessments have been paid as ordered, the defendant shall be discharged without a court judgment of guilt, and the court shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action. The procedure to expunge the record of the defendant shall be as follows:
1. All references to the name of the defendant shall be deleted from the docket sheet;
2. The public index of the filing of the charge shall be expunged by deletion, mark-out or obliteration;
3. Upon expungement, the court clerk shall keep a separate confidential index of case numbers and names of defendants which have been obliterated pursuant to the provisions of this section;
4. No information concerning the confidential file shall be revealed or released, except upon written order of a judge of the district court or upon written request by the named defendant to the court clerk for the purpose of updating the criminal history record of the defendant with the Oklahoma State Bureau of Investigation; and
5. Defendants qualifying under Section 18 of this title may petition the court to have the filing of the indictment and the dismissal expunged from the public index and docket sheet. This section shall not be mutually exclusive of Section 18 of this title.
Hiring Legal Representation
In order to file a petition for expungement, it is helpful to have the assistance and counsel of an attorney who is experienced and knowledgeable of the requirements and processes necessary to correctly petition the court. They can also answer your questions and can help you clear your record.