134.1Deferrals and Discharges

Deferred Prosecution Agreements

Unless specifically prohibited by law (e.g., for charges of impaired driving), a defendant may be placed on a “deferred prosecution” for a wide variety of offenses (see below). Deferred prosecution under G.S. 15A-1341(a1) is a procedure whereby a defendant charged with a crime is not brought to trial, but is instead placed on probation. If the defendant successfully completes the period of probation (which can be for up to two years), the prosecutor agrees to dismiss the charges. Upon expiration of the probation, the defendant is immune from future prosecution for the same offense. See G.S. 15A-1342(i). If the defendant fails to comply with the terms of the agreement (i.e., violates probation), the prosecutor may reinstitute the proceedings by filing written notice with the clerk. See G.S. 15A-932(a1) (dismissal with leave to reinstate for deferred prosecution); 15A-932(e) (resumption of prosecution for failure to comply with deferral agreement).

To be eligible for deferred prosecution under this statute, a defendant must be charged with a Class H or I felony or a misdemeanor, and (upon motion of both the prosecutor and the defendant), the court must find each of the following facts:

1. Prosecution has been deferred by the prosecutor under a written agreement with the defendant, with the court’s approval, to allow the defendant to demonstrate good conduct;
2. Each known victim of the crime has been notified of the motion for probation by subpoena or certified mail and has been given an opportunity to be heard;
3. The defendant has not been convicted of any felony or any misdemeanor involving moral turpitude;
4. The defendant states under oath that he or she has not previously been on probation; and
5. The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.

See G.S. 15A-1341(a1); AOC-CR-610 (Motion/Agreement and Order to Defer Prosecution); see also State v. Gravette, 327 N.C. 114 (1990) (charged offenses did not qualify for deferred prosecution and judge did not have inherent authority to compel Division of Adult Probation to supervise conditional release of pretrial detainee who had not been tried or convicted because he lacked the capacity to be tried).

A defendant may also be placed on a deferred prosecution agreement under G.S. 15A-1341(a2) for the purpose of allowing an “eligible” defendant (see Chapter 7A, Article 62 and local rules regarding eligibility criteria) to participate in a Drug Treatment Court program. The court may place the defendant on probation pursuant to such a deferral agreement if it finds that prosecution has been deferred by the state, based on a written agreement with the defendant, for the purpose of allowing the defendant to participate in and successfully complete the program.

Conditional Discharge Agreements

A similar but procedurally distinct process for resolving criminal charges is the “conditional discharge” under G.S. 15A-1341(a3)-(a6). Under this process, after the defendant pleads or is found guilty of the offense, the court will “defer further proceedings” in the case and place the defendant on supervised or unsupervised probation “without entering a judgment of guilt.” See G.S. 15A-1341(a4); AOC-CR-632D (“Conditional Discharge Under G.S. 15A-1341(a4)”). If the defendant successfully completes the period of probation, then the plea or finding of guilt is withdrawn and the charges are dismissed. See G.S. 15A-1341(a6). If the defendant violates probation, then the court may enter the adjudication of guilt and proceed to sentencing as in any other case.

To be eligible for deferred prosecution under this statute, a defendant must be charged with a Class H or I felony or a misdemeanor, and (upon joint motion of the prosecutor and the defendant), the court must find each of the following facts:

1. Each known victim of the crime has been notified of the motion for probation by subpoena or certified mail and has been given an opportunity to be heard;
2. The defendant has not been convicted of any felony or any misdemeanor involving moral turpitude;
3. The defendant states under oath that he or she has not previously been on probation (see also AOC-CR-237, verification request);
4. The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.

Conditional discharges are also specifically authorized by statute for defendants charged with prostitution, or to allow an eligible defendant to participate in a drug treatment program. See G.S. 15A-1341(a3); G.S. 14-204(b); G.S. 15A-1341(a5); see also Chapter 7A, Article 62, and local rules regarding eligibility criteria. For more information on these deferral options, see the next entry on Deferrals and Discharges – Specific Offenses. 

Supervision, Enforcement, and Violations

1. Period of Probation
   The maximum period of probation is two years, but the judge may set a shorter period. G.S. 15A-1342(a).
2. Conditions of Probation
   A defendant placed on probation under deferred prosecution or conditional discharge is subject to the same regular and special probation conditions as a convicted defendant, except that the defendant may not be ordered to serve an active sentence for a violation of a probation condition. See G.S. 15A-1341(b); 15A-1342(a1); 15A-1343.
3. Violation/Modification/Revocation
   Violations of the terms and conditions of probation in deferral/discharge cases and requests to modify or revoke that probation should be handled just like any other regular post-conviction probation case. See State v. Hilgert, 281 N.C. App. 215 (2021) (unpublished) ("the general rules for probation, absent express language to the contrary, also apply to probation based on a conditional discharge pursuant to N.C. Gen. Stat. 15A-1341(a4)"), citing State v. Burns, 171 N.C. App. 759 (2005) ("In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under N.C. Gen. Stat. § 90-96"). Alleged violations must be reported to the court and the district attorney. G.S. 15A-1342(a1). Probationers must receive notice and a hearing under G.S. 15A-1345 before probation may be modified or revoked. See State v. Darrow, 83 N.C. App. 647 (1986) (evidence that defendant twice made obscene telephone call to burglary victim supported conclusion that defendant violated terms of agreement, and therefore defendant’s removal from felony diversion program was justified); AOC-CR-634 (Disposition/Modification of Deferred Prosecution); AOC-CR-635 (Disposition/Modification of Conditional Discharge).
4. Determining a Violation
   The court, not the district attorney, determines whether a violation has occurred and whether to “order that charges as to which prosecution has been deferred be brought to trial.” G.S. 15A-1344(d); but see G.S. 15A-932(e) (state may “reinstitute” prosecution if defendant “fails to comply” with deferral agreement by simply filing written notice with clerk). For further discussion of how these two statutes interact, see “Deferred Prosecution: Who Steers the Ship?,” Jamie Markham, May 26, 2016. The North Carolina Attorney General’s office advises that probation matters in deferred prosecution cases be managed only by the court of the district in which the agreement was entered into, as “[b]ringing the charges to trial would be the responsibility of only the district attorney who brought the charges.” See "Advisory Letter from Assistant Attorney General Elizabeth F. Parsons to Department of Correction General Counsel LaVee Hamer," Nov. 1, 2010.
5. Termination of Probation
   As discussed above, probation terminates at the end of two years, unless a shorter time period was set out in the agreement. A court may terminate probation and discharge the defendant at an earlier time if “warranted by the conduct of the defendant and the ends of justice.” See G.S. 15A-1342(b). A defendant is immune from prosecution for the deferred or conditionally discharged offense upon the expiration (or early termination) of the period of probation under G.S. 15A-1342(b). See G.S. 15A-1342(i).
6. No Double Jeopardy Issue
   Jeopardy does not attach to a defendant’s “acknowledgement of guilt” in a deferred prosecution agreement. Therefore, subsequent prosecution for failure to complete the agreement is not barred by double jeopardy. See State v. Ross, 173 N.C. App. 569 (2005), aff'd per curiam, 360 N.C. 355 (2006).