Why I Hate Deferred Sentences (and Love SOCs)

Michael P. BrodskyMichael P. Brodsky, Attorney at Law
120 Prospect Street
Bellingham, WA 98225-4300
Phone: (360) 756-5120
Fax: (360) 671-1285

RCW 3.66.067, Assessment of punishment–Suspension or deferral of sentence–Dismissal of charges, authorizes Courts of Limited Jurisdiction (District or Municipal courts) to “[a]fter a conviction  . . . impose sentence by suspending all or a portion of the defendant’s sentence or by deferring the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof.” During the period of deferral the court retains the ability to toll (exclude the relevant time period) probation for non-compliance.  The claimed advantage to a deferred sentence is that “[d]uring the time of the deferral, the court may, for good cause shown, permit a defendant to withdraw the plea of guilty and to enter a plea of not guilty, and the court may dismiss the charges.”  If the defendant doesn’t comply by getting a new charge or violating a condition of the deferred, then the court can decline to permit withdrawal of the guilty plea and the conviction will stand.  This is what is commonly known as a “deferred sentence”[1].

Sounds great, right? Mind your Ps and Qs for a year or two and the charge is dismissed.  Like nothing ever happened, right? Wrong. That’s because the statute only permits the court to impose a deferred sentence “after conviction” meaning the defendant must have been either convicted at trial or pleaded guilty.  Once either of those things happen, that person has been convicted of the crime in the eyes of the law and has incurred all of the disabilities and collateral consequences that attend any conviction[2].  In other words, it’s an enticing but false promise of relief.  And that’s why I rarely recommend them to my clients.

So what manner of beast is the ‘deferred sentence’?  Some, but not all, courts will consider it a conviction for the purposes of preventing the defendant from later vacating it or a previous conviction under RCW 9.96.060 which governs the vacation of misdemeanors and gross misdemeanors.  That statute precludes the person from vacating a conviction if they have been “convicted of a new crime in this state, another state, or federal court since the date of conviction [of the charge they are attempting to vacate];[3]  So the supposedly ‘dismissed’ charge, which, in fact, may be considered a conviction, may prevent vacation of a previous conviction.  One that is potentially more troublesome than the subsequent deferred and dismissed conviction.

On the other hand, when a defendant comes to court seeking to vacate the deferred and dismissed case they may be told – perhaps by the very same judge – that they cannot vacate a deferred sentence because it’s already been dismissed!  Seems to me it’s neither fish nor fowl and carries the worst aspects of both.  So what’s the answer? SOCs!  More on SOC’s soon.

[1] to be confused with Deferred Prosecution, a creature of statute (RCW Ch. 10.05) primarily but not exclusively used for Not DUIs.  See my website for more on those. http://www.brodskylawfirm.com/duidwi-defense/

[2] District Court properly counted defendant’s prior deferred misdemeanor conviction in adding one criminal history point to his criminal history category, although conviction had been dismissed pursuant to Washington statute, where dismissal did not expunge conviction, but rather, conviction remained on record.  U.S.v. Vassar, C.A.9 (Wash.)2002, 40 Fed.Appx. 463, 2002 WL 1191343, Unreported.

[3] Wash. Rev. Code Ann. § 9.96.060(g)  (West)