If you are a first-time offender and have never been arrested before, you may be eligible for one of many diversion programs that are available in your court. Before pleading guilty to any sort of a criminal offense, you should first inquire about the availability of such programs. What is diversion? Simply put, diversion is an alternative to a criminal sentence, and many courts offer diversion programs but do not always offer it initially. Rather than going before the Judge and pleading guilty to an offense, an offender may have the option of performing community service or perhaps undergoing drug screens or alcohol treatment instead of being prosecuted.
Who is eligible for diversion in Georgia?
Typically, diversion programs are available to first-time offenders who have not previously been arrested or convicted of a misdemeanor or a felony offense. However, most courts will not disqualify an individual from diversion if his/her prior convictions are for minor traffic offenses. In addition, some jurisdictions will allow you to participate in diversion even if you were previously arrested but were never convicted of a prior misdemeanor offense. The restriction concerning your eligibility for diversion will vary from court to court. In order to consider all options, you should consult with an attorney who is familiar with the court in which you are charged before assuming that a prior arrest or conviction will prohibit you from participating in such a program. In those jurisdictions where a prior arrest will typically disqualify you from participating in diversion, exceptions are often made depending upon many factors such as how long ago the prior arrest was, what the arrest was for, and the reasoning behind why the arrest did not result in a criminal conviction. In order to be eligible for diversion, applicants must not have previously participated in any other diversion program or be facing any other pending charges.
How does one apply for diversion?
Most courts and jurisdictions will require you to secure an attorney before you may participate in a diversion program. In many jurisdictions that offer diversion programs, the programs are run by the prosecutor’s office. If you are charged with a misdemeanor, the diversion program will likely be run by the Solicitor’s office. If you are charged with a felony, the office handling the diversion program will be the District Attorney’s office. Both of these offices consist of prosecutors representing the State. The prosecutor cannot, and does not, represent the accused. In fact, the prosecutor is prohibited by law from offering a defendant legal advice. Whether or not one’s participation in a diversion program is in his/her best interests is a form of legal advice. For this reason, the prosecutor will often refuse to discuss diversion with you unless and until you secure an attorney. The Judge will also often require that you consult with and retain an attorney before participating in a diversion program. Like the prosecutor, the Judge cannot offer you legal advice.
Most jurisdictions require an application package that you and your attorney will need to fill out in order to apply for diversion. The length and nature of the package is different in every court and will vary depending on the nature of the charges against you. Once the application is completed, it is turned over to the prosecutor assigned to handle the case. That prosecutor will then review the application and determine whether or not the case is suitable for diversion. If the case is initially rejected, under some circumstances an attorney can negotiate for a case to be reconsidered for diversion (see above). In some circumstances, a prosecutor might be willing to offer some sort of informal diversion. For example, if the offense the defendant is charged with is typically not permitted in a formal diversion program, the prosecutor has the option of negotiating with the defendant’s attorney to agree upon informal diversion. In other words, rather than going through the application process for formal diversion, the prosecutor might agree to dismiss the charges if the defendant is willing to show proof that he/she has received some sort of counseling independently. A prosecutor holds a great deal of discretion in deciding how to dispose of charges. The Judge does not usually have any input as to whether or not a case may be considered for diversion because the charges belong to the State and the prosecutor represents the State. The prosecutor’s office is responsible for either going forward with prosecution of the case based on the charges or submitting the case to the Judge for dismissal. If the case is accepted for diversion, the defendant will then usually meet with a diversion coordinator, the person in charge of monitoring a defendant and making sure that they comply with all the rules and requirements of diversion. Again, it is important to understand that the application process is very different in each court and unique to the jurisdiction in which one is charged. Cobb County offers a number of diversion programs for certain misdemeanor cases as well as felony cases.
What is typically required to be completed during diversion?
The requirements will vary from court to court based on the nature of the offense with which one is charged. In the State Court of Cobb County, Georgia for example, if one is charged with misdemeanor shoplifting, diversion will be an option for first-time offenders. Typically a defendant participating in diversion will be required to hire an attorney and, with the assistance of his/her attorney, complete an application for diversion referred to as a “Diversion Petition.” If the petition or application is approved, the Diversion Petition is then filed with the State Court Clerk. After filing a copy of the petition, it is delivered to the Solicitor’s office along with a fee in the amount of $150.00. No personal checks are accepted. The fee must be paid by certified check or money order made payable to “State Court Diversion.” The defendant must then meet all obligations of diversion within a ten-week period. In the case of a shoplifting offense, for example, such obligations might be to complete forty hours of community service at a 501(c) charitable organization of the defendant’s choosing. The defendant must submit proof of having completed the community service via a signed document on the charitable organizations letterhead. The defendant must also enroll in and complete a shoplifting seminar and present a certificate of having graduated from the class. If the defendant is under twenty-one years old, he/she must complete a two-page handwritten essay on why he/she desires to be in the program and what they expect to learn from the program. The defendant must then return to court on the deadline for completion of the program where the prosecutor will submit a written dismissal of the case to the Judge for their consideration. If the Judge signs the dismissal order, it is then filed with the clerk and the case is complete.
What happens to the charges once the case is complete and what are the benefits of diversion?
As stated, once the Judge signs the dismissal order and the order is filed with the clerk, the case is complete. If an individual was arrested and then subsequently participated in a diversion program, his/her criminal history should reflect that, although he/she was arrested, the charges were later dismissed. Certain defendants, depending on the nature of the charges, are then eligible to apply to have his/her arrest expunged from his/her criminal records. The benefit to completing diversion is that one can maintain a clean criminal history. In addition, if a job application asks whether or not you have ever been convicted of a criminal offense, if the charges have been successfully dismissed after participating in diversion, you may answer on the application that you have never been convicted of a criminal offense.
If you have been charged with any sort of a criminal offense, please call Gentry, Smith, Dettmering, Morgan, Schnatmeier & Collins, L.L.P. at 770-421-8655 to discover what diversion options may be available to you. We will diligently strive to reach a favorable conclusion in your case. We look forward to hearing from you.