Deferred Prosecution: Who Steers the Ship?

The district attorney decides when to defer prosecution. But if that deferral includes probation under G.S. 15A-1341(a1), the court has a role in the process—including what to do in response to a violation of the deferred prosecution agreement. Sometimes the State and the judge are on the same page. Sometimes they aren’t. Granting deferred prosecution. Under G.S. 15A-1341(a1), a person charged with a misdemeanor or a Class H or I felony may be placed on deferred prosecution probation on motion of the defendant and the prosecutor if the court makes the factual findings set out in G.S. 15A-1341(a1)(1)–(5). Those findings include an indication that the deferral has “the approval of the court”—meaning the court apparently may disapprove. In that case, the State may still defer prosecution if it wants to, but it will have to be an informal arrangement, without the benefit of probation. Conditions of deferred prosecution probation. As discussed in this prior post, my general view is that deferred prosecution probation is subject to all the same types of conditions as post-conviction probation. G.S. 15A-1341(a1) says the probation is “as provided in this Article”—Article 82, Probation—and so, to the extent possible, all the regular rules apply. That is what the court of appeals has said about probation under a G.S. 90-96 conditional discharge. 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 [...]