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The state of North Carolina has a well-intended program that gives those who have made a mistake a second chance to keep certain misdemeanor and felony convictions off of their public record.  In some instances, a defendant is allowed to be placed on probation pursuant to a deferred prosecution or conditional discharge.  Under G.S. 15A-1341, a defendant is given a deferred prosecution, meaning that they are placed on probation prior to a guilty verdict and therefore there is no entry of judgment.  A conditional discharge operates very similar to a deferred prosecution except that the defendant is placed on probation after a conviction but a judgment of guilt is not entered.  In both scenarios, a defendant has the opportunity to avoid a criminal conviction if they fully comply with probation.  But without proper planning, new legislation can have unintended consequences for those who participate in deferred prosecutions and conditional discharges.

For many people who are charged with a criminal act and arrested, a secured bond is required as a condition for their release from jail and this bond obligation remains in effect until entry of judgment by the court.  Since a deferred prosecution or conditional discharge is not an entry of judgment, up until recently the person who paid the bond had an outstanding obligation during the deferment period.  Meaning, they did not get their money back until the deferment period ended.  But as of December 1, 2016, section 1 of S.L. 2016-107 releases the obligation of the person or agent who posted the original bond if the defendant enters into a deferred prosecution or conditional discharge.  The issue is that the new legislation releases the bonding agent, not the bond condition.  Therefore, if proper steps are not taken upon entering into a deferred prosecution or conditional discharge, the defendant may be re-arrested until the secured bond that was a condition of their release is paid.

For example, you are arrested and placed on a $1,000 secured bond.  Then your girlfriend/boyfriend pays this bond in cash to get you out.  Life happens and you and your significant other part ways.  Later you enter into a deferred prosecution and are placed on probation.  As of the date that you enter into the deferred prosecution, the $1,000 bond obligation remains but the obligation of the bonding agent (girlfriend/boyfriend) is released.  Therefore, if your secured bond is not negotiated or modified prior to entering into the deferred prosecution, your “ex” gets their $1,000 back but the bond obligation remains in effect.  If you do not have $1,000, you could be re-arrested until this bond is satisfied.

Clearly this was not the intent of the new legislation and I suspect it will be worked out in the future. But until then, if you enter into a deferred prosecution or conditional discharge program, it is vital to have your release order conditions modified to ensure that you no longer have a secured bond.  This is just one of many reasons you need legal representation when dealing with the criminal justice system.  Here at Ludlum Law Firm, we make it our business to stay up-to-date on changing laws and legislations.  As in this case, even the best intentions can have negative consequences if not properly handled.  If you or a loved one has the unfortunate situation where you have been charged with a crime, we encourage that you give us a call.  We have over 50 years of experience in dealing with the local courts and criminal justice system.  We pride ourselves in serving the local community and putting our clients’ interests first and it would be our pleasure to serve you.

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