An eligibility question you may not have heard before...

[TexasEligQuestion221]

Hi! I've been searching around the forums for a while and haven't found this same question asked, so I'd really appreciate any advice.

How is federal pretrial diversion - which is pretty rare, especially post-indictment - considered relative to Texas LTC eligibility?

Here's a timeline of strange events:

• Dec. 2003: I was reported to the FBI for a non-violent felony crime under very tenuous circumstances. They asked me some questions and said I may or may not end up being charged. Then there was radio silence until:
• Feb. 2007: A grand jury indicted me for said felony, much to the shock of my high-profile attorney who thought it very unlikely that DOJ would want to move forward. I pled NOT GUILTY and we began preparing for trial.
• May 2009: After a few years of trial preparations, DOJ realized they probably didn't want to prosecute this case. They filed a motion for indefinite continuance on the basis of our ongoing settlement talks.
• May 2010: DOJ extended a formal offer of pretrial diversion, which is normally done pre-indictment, but in my unfortunate case came after. Although it is similar to deferred adjudication in the sense that all charges are dismissed after I successfully complete the program, it differs in a few key ways:
  • There is never any court order regarding this action. It is a voluntary DOJ program that bypasses the court process all together. My case went from a motion for continuance to a motion for dismissal.
  • There is no plea of GUILTY or NO CONTEST entered as a condition of participation. Unlike deferred adjudication, where a violation can result in a finding of guilt, my failure to complete the pretrial diversion would simply have nullified the settlement agreement and caused us to return to trial preparations.
• Nov. 2011: After I successfully completed the pretrial diversion program, DOJ filed a motion to dismiss. In their motion, they cited the fact that we had entered into this pretrial diversion agreement as a means of settling the case, and that it was completed successfully.

It seems like this is all going to hinge on whether the State of Texas views that pretrial diversion program as the same thing as their deferred adjudication.

If the opinion is that it DOES count as a deferred adjudication, it looks like the penal code sets the timeframe as 10 years from when "an order of deferred adjudication was entered" to the LTC application. In my case, since there was never an order regarding this program since it takes place outside the court system, what would the timeline be? Logic might dictate that it would be the date that the pretrial diversion agreement was entered into, however that would be outside the letter of the law since, again, there was never anything consummating that in the court record.

I would be very curious and appreciative to hear from anyone who has experience with or knowledge of similar circumstances and their outcomes.

Thank you!

[Keith B]

Welcome to the forum.

I think this may be your clearance

Nov. 2011: After I successfully completed the pretrial diversion program, DOJ filed a motion to dismiss.

You need to contact the DOJ and ask how to get a copy of the disposition of the case. If it was truly dismissed, then you should be clear to go.

[TexasEligQuestion221]

Welcome to the forum.

I think this may be your clearance

Nov. 2011: After I successfully completed the pretrial diversion program, DOJ filed a motion to dismiss.

You need to contact the DOJ and ask how to get a copy of the disposition of the case. If it was truly dismissed, then you should be clear to go.

Thank you, it's a great forum! I've enjoyed reading many of the topics here.

I have all the records including the DOJ's motion to dismiss and the judge's order granting the motion and dismissing the case with prejudice. However, my understanding is that even in a standard deferred adjudication, there is still ultimately an order of dismissal, so I'd appreciate any clarification you can provide about why the dismissal in and of itself would clear me for LTC. Thank you!

[RossA]

Yep, your lawyer should have a copy of the order of dismissal that was signed by the judge. The DOJ can move for dismissal all it wants, but until the judge signs the order, it ain't over.

[Beiruty]

If the charges were dismissed, you are not convicted of anything. You are eligible for Texas's LTC. I am not a lawyer, I slept few times in Holiday inns, Sheratons, Marriott's, and Hiltons too.

Keep

[Abraham]

TexasEligQuestion221,

Wow!

Given the protracted amount time your torture demanded, it's a wonder you can still function. I extend to you sir my condolences.

In addition, the expense must have been staggering...

You must be made of iron.

[ScottDLS]

Yep, your lawyer should have a copy of the order of dismissal that was signed by the judge. The DOJ can move for dismissal all it wants, but until the judge signs the order, it ain't over.

At what point is your Constitutional right to a speedy trial violated? If Justice or the judge wants to keep you under indictment for life, is that OK?

[TexasEligQuestion221]

Yep, your lawyer should have a copy of the order of dismissal that was signed by the judge. The DOJ can move for dismissal all it wants, but until the judge signs the order, it ain't over.

I have a copy of the order of dismissal. The DOJ moved and the judge granted. However, since even a standard deferred adjudication ends with a dismissal, I'm not sure if this in and of itself clears me for an LTC.

If the charges were dismissed, you are not convicted of anything. You are eligible for Texas's LTC. I am not a lawyer, I slept few times in Holiday inns, Sheratons, Marriott's, and Hiltons too.

This is what I still don't understand. Even in a standard deferred adjudication situation, the charges are still ultimately dismissed. So I'm not clear on how my case is different solely on the grounds of the eventual dismissal. Can you offer any further clarification?

TexasEligQuestion221,

Wow!

Given the protracted amount time your torture demanded, it's a wonder you can still function. I extend to you sir my condolences.

In addition, the expense must have been staggering...

You must be made of iron.

Believe me, it was not easy! I wouldn't wish it on anyone. Okay, well maybe a few people. The time between the initial questions and the indictment was bad enough, but the way the indictment dragged on was freaking brutal. Got help from lots of therapy and anti-anxiety meds along the way :) Thankfully, things are great, and I now have nerves of steel.

It was definitely not cheap, but also could have been a lot worse. I went with an AV-rated firm that ended up quoting a fixed fee of $40K without expert witnesses or other expenses. All things considered with the length of time this lasted, I got a hell of a deal. Another firm I almost went with wanted $100K which would have included all defense costs and all appeals.

At what point is your Constitutional right to a speedy trial violated? If Justice or the judge wants to keep you under indictment for life, is that OK?

I waived my right to a speedy trial since we also had a vested interest in drawing the case out for as long as possible to maximize opportunities to settle with the government. Stressful as it was, it turned out to be the right strategy.

[TreyHouston]

I don't even want to know how much 8 years of a "high profile lawyer" must cost ya! GEEEZZZZ!!!!!!

[TexasEligQuestion221]

I don't even want to know how much 8 years of a "high profile lawyer" must cost ya! GEEEZZZZ!!!!!!

You say you don't want to know, but I bet you're curious :) I paid a $20K retainer on indictment, another $20K as we got into trial prep, and about $10K in other expenses. The way our contract was written ended up working very heavily in my favor; he absolutely didn't expect the case to drag on as long as it did. He's a former DOJ bigwig and was completely shocked that they even proceeded with the initial prosecution. He was also very justice-minded and I think he just recognized that I was a kid that made some stupid mistakes and got caught up in ridiculous circumstances; he went way above and beyond for the money I paid.

[Keith B]

I believe the difference is that deferred adjudication is AFTER a nolo contendere (no contest) or guilty finding is passed. The agreement is to dismiss it once a period is over, but you were still found guilty.

In pretrial diversion, you have not plead nolo contendere or been found guilty, so it is basically a dismissal with no conviction, so you are clear.

This article may help http://criminal.findlaw.com/criminal-pr ... rsion.html

[TexasEligQuestion221]

I believe the difference is that deferred adjudication is AFTER a nolo contendere (no contest) or guilty finding is passed. The agreement is to dismiss it once a period is over, but you were still found guilty.

In pretrial diversion, you have not plead nolo contendere or been found guilty, so it is basically a dismissal with no conviction, so you are clear.

This article may help http://criminal.findlaw.com/criminal-pr ... rsion.html

Thank you, that article spells out logically what I had sort of been assuming, so it's great to see it written out plainly like this. I wish they cited some case law or went into a little more detail since they do also say that pretrial diversion is sometimes called deferred adjudication; it still seems slightly ambiguous but leaves me more optimistic than not! Appreciate your taking the time.

[Beiruty]

File you app, or wait until the application fee is $0. Your call.

[cbunt1]

I'm Absolutely not a lawyer, but to me logic would dictate that "dismissed is dismissed."

The only exception to that condition would be where "dismissed isn't dismissed," such as some of the special clauses where deferred adjudication is considered a conviction for LTC purposes.

These can only be defined under the law as a separate piece of code defining when "dismissed isn't dismissed"

In my non-lawyer opinion, the situation you have described doesn't fit under any of the criteria defined as "dismissed isn't dismissed"

ergo, you should be good to go.

Not to sound flippant, but you're only potentially risking $140 to find out...I think in your case that's a worthwhile gamble given what that ordeal has already cost you. Since you've got the documentation surrounding the case, and you seem prepared to describe what needs to be described to the powers that be, it's a gamble I wouldn't hesitate to take.

[stroo]

Ask the lawyer that represented you before the DOJ. It will cost more than the opinions you get on here, but it will also be worth more.

Remember a free legal opinion from nonlawyers, or even lawyers, is generally worth about the paper it is written on!