When I visit with prospective clients during a free initial consultation, one of the first questions many of them ask me is, "Will I have to go to jail, or can I get probation instead?" Even though Oklahoma has some tough criminal laws and has been accused of "overcriminalizing" its people, there are many times that probation is, in fact, a viable option.
When a judge orders probation for a defendant, it is typically through a deferred sentence or a suspended sentence. Although some people use these terms interchangeably, and they are functionally similar, they are not the same thing, and they feature some important differences.
First, let us look at how they are similar. In both a deferred sentence and a suspended sentence, the judge will order that probation be served instead of jail or prison time. That is where the similarity ends.
So what is a deferred sentence? This occurs when a person pleads guilty to a crime, but instead of accepting the guilty plea and convicting the defendant, the judge delays his or her judgement. Instead, the judge orders probation and gives the defendant a chance to comply with all of the terms of the probationary term before rendering judgement.
Terms of probation may include drug and alcohol treatment; drug testing; community service; court ordered counseling; payment of all court costs, fines, and fees; keeping away from known criminals; and adherence to all state laws. If a person does not stick to the terms of his or her probation, the prosecutor will file a Motion to Accelerate sentencing. The judge may then cut probation short, accept the guilty plea, and sentence the person to jail or prison. The defendant does not get "credit" for probation, and at sentencing is eligible for the full sentence allowed by law.
However, if the defendant does successfully complete probation, his or her plea is changed from "guilty" to "not guilty," and the judge dismisses the case. This is very important, because it means that the defendant is NOT CONVICTED of the crime.
A suspended sentence, while still allowing probation instead of jail or prison, functions differently. In this case, a person is convicted of the crime, either through a guilty plea, a judge's decision at a bench trial, or by a jury's decision following a jury trial. While the person is convicted and guilty of the crime, a full prison sentence may not be in the best interest of justice. The judge may suspend all or part of the sentence, allowing the person to serve probation instead.
If a person violates probation, then the prosecution will likely file a Motion to Revoke the suspended sentence. If a judge revokes the suspension, then the convicted person will spend the remainder of his or her sentence in jail or prison. Unlike in a deferred sentence, the person does get "credit" for time already spent in probation.
The key difference, however, is that a deferred sentence gives a person a chance to avoid conviction, whereas a suspended sentence follows criminal conviction.
To learn more about deferred judgement or suspended sentencing, talk to your lawyer or call attorney Adam Banner at (405) 778-4800.