Felony Pre-Trial Diversion in Collin County

February 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The Collin County District Attorney’s Office unveiled their new Felony Pre-Trial Diversion Plan earlier this month.

What Is Pre-Trial Diversion?

Pre-Trial Diversion (PTD) is when you do an “informal” probation without pleading guilty.  The case is dismissed when you are finished and the Collin County District Attorney’s Office does not oppose a Petition for Expunction clearing your record entirely.

The diversion can last a year or more and typically includes customary probation requirements such as monthly reporting, random drug tests, classes, and community service.

PTD is considered for first-time arrestees and the previous program was far more wide-spread for misdemeanor charges such as theft or possession of marijuana.   Acceptance into PTD is predicated also on an arrestee admitting to the charge in writing (though not a plea of guilty.)

If the person in the program fails-out or does not complete diversion then their case goes back to Court where the person can still have a trial.

An important dynamic of Pre-Trial Diversion in Collin County is a participant’s inclusion is at the sole discretion of the D.A.’s office and the probation department which administers it.  This means they can refuse to admit you for a good reason, bad reason, or no reason whatsoever.

What is New with the Program?

PTD was really only for misdemeanors but some felonies qualified too.  Now the D.A.’s office has promised to review far more applicants for Felony PTD cases.

A joke I’ve told prosecutors in the past was, “The first pre-requisite for felony PTD is it can’t be a felony.”  This is to say though the D.A.’s office had previously accepted felonies into diversion — the cases accepted were as common as purple unicorns grazing on the highway.

One of the problems with the old felony PTD system, from my point of view, was the daunting layers of prosecutors who had to be convinced my client was deserving of another chance.

Prosecutors handle hundreds of cases a certain way throughout their career and when you want a specific case to be treated differently — it’s an uphill battle.  This is completely understandable but a challenge none the less.

The D.A.’s office seems very serious about expanding the program if nothing else.  They have created a web page for applications and dedicated a prosecutor to review all of the applications which shows they have very much centralized their plan.

How Do I Get In to the Collin County Felony PTD Program?

The procedure for qualifying for Felony PTD isn’t an easy one.  You must go to their web-page and fill out an online application which requires you to upload things such as letters of recommendation, your resume, and school transcripts.

DO NOT FILL OUT THEIR APPLICATION WITHOUT A LAWYER!

First of all you need to have been indicted by the Collin County Grand Jury with a felony to begin this process… that is you have to be formally charged with a felony first (not just on-bond after being released from a felony arrest).

Second, anything you upload is information law enforcement probably already does not have about you. Anything you say or upload has the potential to be used against you.

Additional advocacy and lobbying by attorneys for their clients applying to the program will be a key component of getting accepted into the program.

If they invite you to interview with the probation department directly then you’re in pretty good shape.  You and your lawyer will go over additional paper-work and discuss the interview process.

What We Don’t Know About Felony PTD Yet

There are still many unanswered questions.  We don’t know how they will treat certain cases and we don’t have much of an idea of what their acceptance rates will look like.  For example in misdemeanor cases we know they will not accept family violence cases or DWI cases for diversion.  There will undoubtedly be categories of cases they will not review simply based on the charge.

There will be much trial and error both on the D.A.’s side of the program and on the defense side which only time will resolve.  They will undoubtedly get applications they don’t know what to do with just the same as we are guessing at what they will and won’t accept.

We will have a much better idea exactly how their new, expanded program is working in time.

Until then play it safe and listen to your lawyer.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any matter contact a lawyer directly.

 

 

 

Leave a Comment » | pre trial diversion, probation, Probation Revocation, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

Probation Sanctions — Facts Versus Fiction

November 29, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Frequently, a probation officer (“PO”) in Collin County will present a probationer with proposed “sanctions” for alleged probation violations. Often the officer will request the probationer make up their mind on the spot – which prevents the probationer from truly making an informed decision.

The proposed sanction could include jail, taking new classes, and even extending probation. If the person turns down the sanction, then the probation officer threatens a motion to revoke probation or motion to adjudicate deferred adjudication.

These situations are like snow-flakes. No two are alike. Thus, you should always talk to a lawyer about your choices, and this blog (awesome as it may be) is really no substitute for case specific legal advice.

The best I can do is separate fact from fiction based on what I hear about the tactics some PO’s might use to get probationer to sign the sanctions, and what I know the law to be about revocations.  I use the terms probation revocations and adjudication of deferred interchangibly:

Facts:

  • A probation officer can seek to have your probation revoked if you violate any term and condition of probation. They need the District Attorney’s Office to sign off — but this is just a formality.
  • A probation revocation will trigger a warrant. You will be re-arrested. You are generally entitled to bond on misdemeanors but not always on felonies.  If there is no pre-set bond, then you might have to wait in jail while one is set. This could take several days or several weeks.
  • The vast majority of revocation proceedings result in plea bargains between prosecutors and your defense lawyer.
  • If you have a contested hearing, the state has the burden to prove by a preponderance of the evidence that you did violate probation at a hearing before the judge. Formal rules of evidence apply.
  • Most revocations have multiple allegations of violations, and if you lose on any one of them your probation could be revoked or deferred adjudicated.
  • If your probation is revoked then you can be punished as much as the underlying sentence will allow. If you were on deferred, then you’re subject to the maximum sentence range.

Fiction:

  • The Judge is angry with you:
    • Rarely does the judge know or care about your case if you’re just having problems with your probation officer. Collin County Judges have hundreds if not thousands of cases at one time — so your case is not as special as you think. Some judges are very “hands-on” with probationers but most would consider an every-day dispute between a probationer and a PO as a waste of their time. This obviously changes if you face revocation proceedings.
  • You Will Definitely be Revoked/ Adjudicated
    • POs often bluff.  They do not seek to revoke probation on every instance where they offer sanctions.
  • You Will Have to Explain Your Refusal of the Sanctions to the Judge
    • If you say no to the proposed sanction you are not necessarily going to have a hearing with the Judge.  The paperwork and the PO might say if you say no to the sanction you are requesting a hearing with the judge — but the reality is the PO is the one requesting it and they rarely follow through.  This is more often than not used as a threat to bully someone to accept sanctions.
  • You Will Get the Max (or Lengthy) Jail Sentence if You Say No
    • You won’t get punished for saying no to your PO.  This is normally an idol and unsubstantiated threat.  Think about it… if your PO really thought you should get a maximum sentence — then why are the offering not only to keep you on probation but not even revoke you in the first place?
  • The PO Will Make Sure You Get a Stiff Penalty if you Say No
    • Your probation officer has very little to do with process after the motion to revoke is filed.  They don’t go to your court dates and they don’t normally have a close relationship with the prosecutor.  The PO might testify if the case is ultimately contested but this is rare.  The PO typically writes a recommendation but this recommendation is not binding on anyone.

Can I Get Out of Sanctions if I already Signed Them?

Yes, it is possible. You need a lawyer and you need to file a request with the Judge to abate (pause) or undo the sanction.  The sanction can be analogized to a contract.  Most contracts can’t be executed under duress or stress.  Where a sanction was signed under threats of jail or worse — an argument can be made the consent was invalid.

The Bottom Line About Sanctions

Sometimes they make sense and you should seriously consider accepting them.  Don’t do so without a lawyer, though.  We can tell you what your alternative looks like and this will allow you to make an informed decision and you will know whether you have been offered a fair deal or not by your PO.  Your PO is likely an honest, hard working person but they do not know the court system, the laws, and the likely outcomes nearly as well as your lawyer will.

 

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should consult an attorney directly.

Leave a Comment » | Probation Revocation | Permalink
Posted by Jeremy Rosenthal, Esq.

Shock Probation — Converting a Prison Sentence to Probation

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

“Shock Probation” allows a trial judge to convert a prison sentence into probation.  This can be after a plea bargain, a bench trial, or a jury trial where the Defendant is sentenced to prison.

Texas Code of Criminal Procedure Section 42.12(6)(a) allows the trial court to retain jurisdiction “for 180 days from the date the execution of the sentence actually begins” and the judge can place the defendant on probation if the defendant is otherwise eligible.  These do not apply to State Jail Felonies, however, other probation programs apply to those charges.

In other words, the defendant must still (1) be sentenced to less than 10 years of prison and (2) not have been convicted of a felony in this state or any other State.  The Judge cannot grant shock probation where the Judge couldn’t otherwise — meaning “3(g) offenses” such as murder, aggravated robbery, aggravated assault, aggravated sexual assault of a child, indecency with a child, or injury to a child to name just a few.

So here is how it works… after someone is sentenced (for example after a jury trial), the lawyer files a motion for shock probation under 42.12(6)(a).  The judge can deny the motion without a hearing but cannot grant the motion without a hearing.  The Judge must grant the request within 180 days of the date the execution of the sentence actually beings or it would be over-ruled as a matter of law.

Shock probation and an appeal are not mutually exclusive and both can be done.

A motion for shock probation is a great “second bite at the apple” and should be considered where a trial or plea bargain went wrong.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

Leave a Comment » | Appeals, Probation Revocation, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

Can I Travel on While On Probation?

September 22, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Collin County Community Supervision’s policy is that you can travel as long as you’re in “good standing.”  What exactly that means and who gets to make that decision is the big question.  Unfortunately travel requests often trigger power struggles between probation officers and probationers.

Routine travel which is work related normally isn’t an issue.  I’ve seen many probation officers balk, though, when presented with leisure travel or pre-planned vacations on the other side of the world.  It’s not uncommon for a probation officer to give vacillating answers or say they “need to check with their supervisor” which drags out the problem perilously close to date of travel.

To me – the policy is the policy.  If someone is in good standing, then the who, what, when, where and how of a probationer’s travel is none of the officer’s business as long as all requirements are otherwise being met.

Probation officers are hard working but they’re human like everyone else.  Perhaps they feel their control over the probationers is jeopardized with such a request, perhaps they think probation should be a moratorium on relaxation, or perhaps there may even be a twinge of jealousy involved.

Let the Judge Decide

The Judge has the final say about whether or not someone can travel while on probation.   They can and often do over-rule your probation officer.  They aren’t interested in the daily power-struggles between a probation officer and a probationer and they frequently see probation’s opposition to travel as petty or arbitrary.

If you are being denied the ability to travel while on probation — call your lawyer!

 

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. For any question you may have you should contact an attorney directly.

Leave a Comment » | Probation Revocation | Permalink
Posted by Jeremy Rosenthal, Esq.

The Nuts and Bolts of a Probation Revocation

August 21, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I often get asked what people can expect when they think they could be facing a probation revocation.  I’ll try to answer that question in today’s discussion.

Here is how a probation revocation works from A to Z in Collin County where I practice:

Let’s say a person on probation upsets the probation officer, or fails a drug test, doesn’t report, commits a new offense, doesn’t report… etc., etc., etc., and now we think there could be a probation revocation.

The first thing that happens is that the Probation officer has a decision to make.  The probation officer has three basic choices.  They can (a) do nothing, (b) try to call the probationer into the office for agreed sanctions, or (c) recommend a full-blown revocation.

Believe it or not, but the probation officers often select option (a) depending on the nature of the violation, their caseload, and their prior relationship with the particular person on probation.  Technically a traffic ticket could trigger a revocation because it is “an offense against the state of Texas,” but I can’t say that I’ve ever seen a class c traffic offense ever alleged in a revocation proceeding.

Option (b) is a tricky option and is my least favorite as a criminal defense lawyer.  Frequently, probation officers will call the probationer into their office and threaten the person with telling the judge, jail, or who knows what — unless they voluntarily agree to modify their probation by agreement (virtually always without the assistance of a lawyer).  The problem with option (b) is that there is no fact-checking the probationer can do and the probation officer’s predictions of how future legal proceedings will go are very slanted… not to mention they’re going to ignore important rights you might have when giving you the doomsday scenario to scare you into agreeing to a longer probation or to spend a few weekends in jail.

Then there is option (c) — a full blown revocation.  Here’s how it works:  The probation officer drafts a “motion to revoke probation” or a “motion to adjudicate” if the person is on deferred probation.  The probation officer presents the motion to the District Attorney’s office who has final approval to file the motion with the court.  Once the D.A.’s office approves and files the revocation (and they virtually always do), then the Court will issue a warrant for the probationer’s arrest.

Once arrested on the revocation/ adjudication, the person is entitled to a bond on all misdemeanor offenses.  On felony revocations, a person is only entitled to a bond if they are on deferred adjudication.

After arrested, and hopefully released, the revocation proceeding goes to the original court where the person was placed on probation.  The State bears the burden of proving any and all allegations in the motion to revoke beyond a preponderance of evidence (not beyond all reasonable doubt) before the judge.  There is no right to a jury any longer once the person is on probation.

If the State meets their burden, or the defendant pleads “true” to the allegations, then the trial Court is empowered to sentence the defendant anywhere within the punishment range.  The Court also retains the right to continue the person on probation or deferred as the case may be.

For example, if the person is on probation for DWI with an underlying jail sentence of 90 days, then upon revocation a person could legally be sentenced to the 90 days of jail, but no more.  Again, the trial judge could also merely continue the defendant on probation while tacking on additional fines or other requirements.

There are several legal defenses to revocation, but truthfully most revocations come down to damage control.  From a criminal defense lawyer’s standpoint — defending a revocation or adjudication requires diligent skills in building a mitigation case and also the ability to successfully negotiate with the prosecuting attorney.

A good defense lawyer has to understand that every person is just a file to the assistant district attorney and the judge.  It is our job to get the prosecuting attorney to see the full picture.  Not just the picture the probation department wants them to see.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is designed to be legal advice.  For legal advice about any specific situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no content submitted through this blog is considered confidential.

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Posted by Jeremy Rosenthal, Esq.

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