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  1. #1
    Join Date
    Oct 2009
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    Default Can You Get a Deferment for a Felony DV Charge

    My question involves criminal law for the state of: Florida
    My bf was charged with DV w/Strangulation which is a felony charge in Florida. I am opting not to charge him and offering him to plead guilty to a lesser charge of Misdermeanor that will require him to have one year's probation, 50 hrs community service, drug testing, counseling, battery intervention, substance abuse counseling as well as a no contact order for me. Does the law allow me to ask the courts to. Do I have it in my power to also ask that instead of him pleading guilty to even the lesser charge that I can ask that he be placed in the diversion program or deferral upon completing all of the above requirements? He is 44 and has never been in trouble his whole life and while we are no longer going to be together I understand that sometimes with the economy and stresses the way they are sometimes even good people snap and loose control. I believe that he should be held accountable for his actions towards me but that he sould not have to have this on his record for the rest of his life.
    What is the difference between a deferral and a diversion and can both things happen?
    Thank you!

  2. #2

    Default Re: Can You Get a Deferment for a Felony DV Charge

    Since he has been arrested and charged, he will have a Florida criminal history (it's triggered by the arrest, not dependent on what the ultimate disposition of the case is, even if the case was dropped, the arrest record stands until expunged or sealed). If he is ultimately convicted of a felony, it will not be able to be expunged. If he is able to plead down to a misdemeanor, then the possibility of getting the record sealed or expunged will depend on exactly WHICH statute he is ultimately convicted under (you can find info on the sealing and expunging processes at

    http://www.fdle.state.fl.us/content/...unge-Home.aspx

    It can be a ten year (or more) process, AND there's no guarantee that an application for sealing or expungement will be approved.


    Florida law, in the State Constitution, in State Statutes Chapter 921, 960, and a dozen or so others, gives you as the victim some specific rights to be part of the process - including to confer with the prosecution, and to address the court prior to sentencing (assuming the case goes to trial and isn't pled out). However, you need to be aware that these only allow you to give INPUT, not to make any bottom line decisions - that is ultimately up to the prosecutor's office. If they feel they have a rock solid case, they may choose to continue to pursue the felony charge. Your encouraging them to plead down and include the types of counseling you mention may or may not be successful, but overall, your request isn't out of left field, and might be attractive to the prosecution if you, the victim, bring the offer to the table. I wouldn't get my hopes up on there being ZERO jail time, but a few weeks or months in the county jail is certainly more desireable than counting down years in a state prison. It's also possible that the court will consider any jail time he's already been subjected to as sufficient (often called "time served", or at least count any such time towards any time sentenced. You can find more specific info on your rights and ways you can interact in the process at:

    http://www.aardvarc.org/victim/states/flvic.shtml

    In Florida, diversion/deferral usually refers to programs that are offered to offenders in which formal charges won't be pursued in trial IF the person completes some course of action (getting counseling, completing a treatment program, etc.). They are commonly known as "pre-trial diverson" because they occur after charges are brought, but before the case is taken to trial; and are typically used in misdemeanor infractions or non-violent felonies. If they do what the court tells them to, AND they otherwise stay out of trouble, the charges against the accused can be dropped and the person may then be eligible to have the record of their arrest expunged. If such a program is offered and completed, the criminal history will still show the arrest, and the disposition on the case will typically show as "adjudication withheld" - meaning basically that the court was happy with the defendant's actions in deferral and so imposed no formal sentence on top of the program they completed. This is important in Florida because cases closed as "adjudication withheld" don't count, as far as the state is concerned, as convictions (employers and others may have their own opinion). Again, both the arrest and the disposition will continue to appear until a successful expungement is granted.

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