Criminal Defense of Immigrants
§ 7.31 4. Deferred Verdict
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“Deferred verdict” describes an agreement between the prosecution, defense, and criminal court under which the criminal court conducts a court trial upon agreed facts, but postpones all further criminal proceedings prior to entry of verdict following the court trial. Typically, this type of agreement contains the following elements:
(1) The defendant waives the right to confront witnesses, right to a jury trial, and right to a speedy trial.
(2) Both parties agree to dismiss some charges and to submit others to court trial, as they would if negotiating a plea of guilty to some charges while others are dismissed.
(3) The case is submitted to the court for a court trial on the basis of an agreed-upon record such as the police report or preliminary hearing transcript. It is very important to make sure that the defendant does not admit the truth of any facts, but rather agrees only that the court may consider certain papers as containing the facts upon which the case is tried. This should be sufficient to avoid coming within the portion of the statutory definition of conviction referring to the admission of sufficient facts to support a conviction, so the resulting disposition is not considered a conviction for immigration purposes. See § 7.19, supra. It is also important to ensure if possible that the facts on which the case is submitted do not constitute part of the record of conviction. See Chapter 16, infra.
(4) The court agrees to defer rendering a verdict until an agreed period of time has passed, for example, six months or a year.
(5) During this time, the defendant agrees to comply with certain conditions. These conditions can be simple, such as “obey all laws,” or more demanding, such as successful completion of a residential drug program, or payment of specified restitution.
(6) The initial agreement provides that if the defendant successfully complies with the specified conditions during the period of deferral of verdict, the prosecution will dismiss all charges without entry of a plea or verdict at any time.
(6) The court postpones the case for the agreed period.
(8) After successful completion of the deferred verdict agreement, the prosecution moves to dismiss all charges. Typically, the prosecution has virtually total authority over the bringing and dismissal of charges, and the court will generally agree to dismiss charges when both sides agree, although the court has authority to render a guilty verdict which would bring a conviction into existence for immigration purposes.
If the defendant meets whatever conditions are stated in the agreement, suffers no new arrests, satisfactorily attends drug counseling, and the like, then the charges will be dismissed at the end of the deferral period. Again, this arrangement does not meet the new statutory definition of “conviction” since no one has found the noncitizen guilty, no plea of guilty or no contest has been entered at any point, and the defendant has not admitted any facts, much less sufficient facts to warrant a finding of guilt. See § 7.11, supra.
CONVICTION - DEFERRED ADJUDICATION
Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), even if court withheld adjudication on first possession conviction), citing United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (plea to a felony drug charge under Florida law constitutes a valid prior "conviction" for purposes of the CSAs recidivism provisions, even if the trial court withheld adjudication of guilt).