Probation Before Judgment: Dismissal in Slow Motion
In Delaware, the Attorney General is the criminal prosecutor for all three counties. The Attorney General’s authority to drop charges or “nolle prosse” charges was and remains absolute.
Prior to 1999, the Delaware Attorney General’s Office had an informal practice commonly referred to as “Attorney General’s Probation.” This practice allowed a criminal defendant to agree to certain conditions, which if met, would result in the charges against him being dropped, usually six months later.
In July 1999, the informal practice was made formal by a new statute. The Statute1describes this practice as “Probation Before Judgment” or “PBJ” It permits, as did Attorney’s General Probation before it, dismissal of certain misdemeanor criminal offenses “in slow motion.”
Probation Before Judgment is available for a violation or a misdemeanor that is listed in:
- Title 4 – Alcohol Violations
- Title 7 – Department of Natural Resources and Environmental Control Violations
- Title 11 -The Criminal Code
- Title 21 – Motor Vehicle Offenses that are Subject to Voluntary Assessment
The Statute provides that after accepting a guilty plea or nolo contendere (no contest) plea, the Court may with the consent of the defendant and the State, stay the entry of judgment, defer further proceedings, and place the defendant on “probation before judgment” subject to reasonable terms and conditions as may be appropriate.
Conditions of Probation Before Judgment must include the following:
The defendant must:
- Provide a current address
- Provide written notice of any change of address
- Appear if summoned at any hearing convened for the purpose of determining whether the probation before judgment has been violated
The terms and conditions of PBJ may include any or all of the following:
- A pecuniary penalty
- Payment of court costs to the State
- Restitution to the victim
- Community service
- Refrain from conduct with certain persons
- Ordering the defendant to conduct himself in a specified manner, including no violations of the law
The length of the Probation Before Judgment is fixed by the Court, but cannot exceed the maximum term of commitment provided for the offense or one year, which ever is greater.
Probation Before Judgment Is Not for Everybody
PBJ is not available for violations of first offenders in the following programs:
- Domestic Violence Diversion Program, conditional discharge
- Issuing a bad check, even a first offense
- Controlled Substances Diversion Program
- DUI Election in lieu of trial
These are all first offender programs and Probation Before Judgment can be considered a catch-all first offenders program.
Probation Before Judgment is also not available to:
- Anyone serving a sentence of incarceration, probation, parole or early release
- A person charged with a criminal offense who has previously been convicted of any violent felony
- A person charged with a criminal offense who has previously been convicted of any non-violent felony within ten years of the date of the offense charged
- A person charged with a criminal offense who was previously convicted of any misdemeanor within five years of the date of the alleged offense
- A person charged with a violation of alcohol or natural resources and has a previous conviction of any offense from those titles within five years of the alleged offense
- A person charged with failure to pay motor vehicle fines who has previously been convicted of any traffic offense within five years of the date of the alleged offense
- A person charged with violation of school attendance requirements or truancy who has previously been convicted of the same offense within five years of the alleged offense
- A person charged with an offense involving a motor vehicle and holding a commercial driver’s license
Previous convictions that prevent PBJ include:
- Convictions under the law of another state, the United States or any territory of the United States for an offense which is equivalent to any offense described above
- An adjudication of delinquency
- A first offender’s alcohol program.
Probation Before Judgment is not available to any person who has previously been admitted to Probation Before Judgment within five years of the current offense.
Violation of the PBJ Results in Criminal Conviction and Sentencing
If a term or condition of Probation Before Judgment is violated, the Court may enter judgment and proceed with sentencing as if the person had not been placed on Probation Before Judgment.
Compliance with PBJ Results in Dismissal of the Charge
On the other hand, if the terms and conditions of Probation Before Judgment are fulfilled, the Court must enter an order discharging the person from probation. The defendant has the burden to demonstrate that the terms and conditions have been fulfilled. The discharge is the final disposition of the matter. Discharge of a person under Probation Before Judgment “shall be without judgment of conviction, and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of a crime.”
Despite making this a statutory remedy, which is monitored by the court, the Attorney General may advise the court of aggravating circumstances in opposition to placing a defendant on “probation before judgment”.
PBJ in Action
Recently, I successfully convinced the State to accept Probation Before Judgment for a young man who was ticketed in a State Park for possessing a “potato launcher” or “potato cannon.” The State changed the charge, which was written up as possessing a “weapon” in a state park, to disorderly conduct and Probation Before Judgment.
The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.