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Do I need to pledge guilty in order to get diversion for misdemeanor battery? How about deferred prosecution?

Fremont, CA |

Do I need to pledge guilty in order to get diversion for misdemeanor battery? How about deferred prosecution? Are they the same? If not, which one is better? If I hire a lawyer for my case, and when the case is dismissed after 6/12 months, do I need to ask my lawyer to submit the paper work to get it dismissed officially? If they charge flat fee, do I need to pay extra after 6/12 months.

Attorney Answers 4


  1. In any criminal case, you should have a lawyer. They can review your case and advise you of the defenses and options.

    Don't plead guilty without talking with your lawyer.

    BEFORE you plead guilty is the time for a lawyer, not after. If you plead guilty or go down a particlar path on your own, trying to undo or fix things is more difficult.

    Please pardon any typos - posted via mobile device.

    The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.


  2. In most cases, diversion programs require you to plead guilty in order to get diversion. If you succeed, you earn dismissal. If you fail, the guilty plea is entered and you are found guilty. Best to talk to a lawyer before you do any of these because there a number of possible outcomes. With regard to private attorneys, every attorney operates differently, so you'll need to talk to some lawyers directly.

    No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia


  3. Do you need to plead guilty to get diversion? Not necessarily. It depends upon whether you are offered deferred entry of plea or deferred entry of judgment.

    I think you need a short primer on diversion. Diversion usually takes the form of either delayed entry of judgment or delayed entry of plea. Such programs are informal and increasingly rarer and rarer for judges to allow. Both programs are good because they result in dismissals, which suggest to anyone looking at the criminal record that the charges lacked merit and the defendant was innocent.

    Deferred entry of judgment involves a defendant entering a plea of "No Contest" to one or more of the allegations. However, with an agreement between yourself, the prosecutor and the judge to handle the case via a deferred entry of judgment, the judgment is not entered. It is deferred, or delayed. No judgment is entered, which is significant because no conviction entered in the record against the defendant.

    Normally, when one enters a "No Contest" plea, a judgment and a conviction is automatically entered immediately thereafter. With a deferred entry of judgment, defendant is instead allowed to hit the proverbial “pause” button and given time to do a drug treatment program, a bunch of community service, community labor or Cal-Trans, do a shoplifting prevention course, attend some anger management classes, complete a prostitution diversion program (PDP), attend a sex compulsion course, perhaps attend some Alcoholic Anonymous (AA) meetings, stay away from a certain location, pay restitution or just stay out of trouble. If these things are done in a specified period of time, one can return to court and have the plea withdrawn and the case dismissed. This is great.

    However, if one fails to complete the program, do the community service, etc., judgment is then entered and there is a conviction. After all, defendant already entered a plea of "no contest" or "guilty."

    A deferred entry of plea is similar to a deferred entry of judgment, except one delays entry of a plea, perhaps for six months or even a year, to be given the opportunity to do a drug treatment program, community service, etc. A deferred entry of plea program is superior to a delayed entry of judgment form of diversion because no plea is entered. This means that is an employer, college or landlord were to check on one’s criminal history, there would be only an arraignment shown, where defendant entered a “Not Guilty” plea. There would be no “No Contest” plea shown. This is good because most people equate a “No Contest” plea to an admission of guilt or at least a confession of committing the crime.


  4. Mr. Dane is correct. Do not plead guilty without an attorney.

    The response above is not intended as legal advice. This response does not create an attorney-client relationship. Legal questions can only be fully answered through consultation with an attorney to whom you give full and accurate details. Anything you post here is not confidential and is not protected by the attorney-client relationship. It is highly recommended that you seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting.

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