Probation Eligibility: The Exceptions Make the Rule

Tue, 07/29/2014 - 2:21pm

People who have had prior brushes with the law often want to know if they are eligible for probation.  This is perhaps one of the most complex questions within Oklahoma criminal defense law.  IN GENERAL, a person is not eligible for probation on a new felony crime if the have two or more previous felony convictions.  Note the word “felonies” as, again in general, misdemeanors neither impact a person’s eligibility for future probation nor are themselves ever crimes for which a person is probation ineligible.  That being said, the law is littered with exceptions.  There are many crimes for which a person is never eligible for probation.  Likewise, there are crimes for which people are always eligible for probation no matter their criminal history.  There are also crimes that carry a probation prohibition only if a person has committed the same or similar type of crime in the past.


To make things even more complex, the nature of the previous felony matters a great deal.  When we talk about prior “convictions” we usually think about actual felony convictions–suspended sentences or time to do.  But under a recent change in Oklahoma law, certain deferred adjudications under the UCDSA (drug laws) now count as “convictions” for legal purposes.  So yes, you can technically not be a convicted felon but still be treated like one.


Mandatory imprisonment can often times be avoided by a person’s participation in one of the numerous diversion and treatment programs typically available.  Skilled attorneys can also sometimes use specific legal provisions in combination with negotiation to help a person avoid prison time under certain circumstances.  However, if a person is truly probation ineligible a judge cannot, in general, give him probation without an agreement by the State.  On several occasions I had to remind unskilled attorneys of this fact before they allowed their client to enter a plea to the judge which would automatically end up sending them to prison. 


Don’t hire someone like that, seriously.

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