Diversions are becoming popular
While I try not to repeat myself, it sometimes becomes inevitable to rehash certain things, especially when there are a lot of questions surrounding a certain topic.
About three years ago I did a column explaining judicial and pre-trial diversions, how they work and who can qualify for them. Recently, with diversion requests in high-profile cases like that of Mary Winkler and Joy Slatton, I?ve received more requests to revisit the topic, since some folks are fascinated how you can commit a crime and walk away unscathed.
All citizens have a right to ask for their one get-out-of-jail-free card. They are called pre-trial and judicial diversions. They are like a do-over or a mulligan in golf when it comes to breaking the law. There are two flavors of diversions.
The most guiltless is what is called a pre-trial diversion. This is granted by the prosecutor. In a pre-trial, the defendant is not required to even enter a guilty plea. Instead, they are generally placed on two years probation, and provided they get in no further trouble, the charges are simply dropped. If they re-offend, then the charges can be brought back and prosecuted.
In a judicial diversion, which is granted by the judge not the prosecutor, the defendant must enter a guilty plea, admitting guilt to the crime. Then the defendant is on probation for an agreed number of years, with his or her record erased if the probation is successfully completed. Failure to avoid further trouble means the person is violated and can be sent directly to jail without a trial since they already entered the agreement.
Anyone can apply for these diversions. Contrary to urban legend, you don?t have to have a spotless record to qualify. You can have misdemeanor convictions on your record and still get a diversion. So long as you haven?t been convicted of a past felony or Class A misdemeanor and the crime is not a sexual crime or a Class A or Class B felony, and you?ve never been sentenced to any jail time, you may submit an application for pre-trial or judicial diversion. In the case of Winkler, she had no prior record and she was convicted of the Class C felony of manslaughter, meaning she technically qualifies.
A diversion is only supposed to be granted once in a lifetime to a defendant, kind of like a second chance to an offender. The offender must also swear to the facts of the case, meaning they can be held liable for perjury if they lie on their application. Economic status can have something to do with it in that one thing which is looked at is the ability of the offender to make restitution to the victim. However, in cases of judicial diversion, payment of restitution is part of the probation and can be done over time.
There are two major advantages of diversions over entering a plea to a crime. First and most obviously, there is no jail time. However, there can be hurdles such as restitution and required employment and things of that nature which has been known to trip some folks up on their way to freedom. Second, and perhaps most compelling, is that the person?s record is expunged or erased at the end of the diversion. This means you can commit a felony and not be saddled with a felony record for the rest of your life.
According to what kind of diversion you apply for, it is up to the judge or prosecutor to accept or deny the application. If the application is denied, the applicant has a right to appeal it to the state court of appeals. The appeals court, if it finds there was good reason for the application to be accepted, can grant the diversion itself.
How common are they? Well, I see at least one or two on every docket, plus, now that people are learning what to ask for, I?ve seen quite an increase in just the past three years.
Duane Sherrill is a reporter for the Standard. He can be reached at 473-2191 or by e-mail at [email protected].