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Pretrial Diversion For Class D Felonies In Kentucky
What is Pretrial Diversion?
The attorneys at Hurst & Hurst would like to inform you about a program for good people who have made a serious mistake but are not habitual criminals. The program is called Pretrial Diversion and if a person is eligible it can allow them to avoid going to prison even if they are actually guilty of the Class D felony they have been charged with. If the program is successfully completed it is even possible to get the charge removed from you criminal record.
Who is Eligible For Pretrial Diversion?
In general a person is eligible for Pretrial Diversion of their Class D felony if, (1) they have not had a felony conviction in the ten years prior to the commission of the current offense, or (2) they have not been on probation, parole or released from incarceration for a felony within ten years prior to the commission of the current offense. There are certain categories of crimes that specifically can’t be diverted. Most of those crimes can be classified as sex crimes and violence against children. Also, a person cannot take advantage of this program more than once in a five year period. In my experience, the most common charge that qualifies for Pretrial Diversion is a felony drug possession charge.
How Do I Get Pretrial Diversion?
After a person has been indicted with a Class D felony a person eligible for the program may apply to the Circuit Court and the Commonwealth Attorney for entry of a Pretrial Diversion Order. Realistically your attorney will discuss your case with the Commonwealth Attorney’s Office to see if they are willing to negotiate a deal for Pretrial Diversion. If an agreement is reached between your attorney and the Commonwealth’s Attorney that you find acceptable; then you plead guilty and waive your right to a speedy trial. If the Judge agrees, and they usually do, then a Pretrial Diversion Order is entered and the Defendant is given an opportunity to avoid jail time.
What Happens During the Pretrial Diversion Period?
What happens after the Court has entered an order for Pretrial Diversion will vary slightly. It will depending upon your Judge and the deal reached between your attorney and the Commonwealth’s Attorney. As the Judge has some discretion with Pretrial Diversions. The following the following six conditions will be ordered in all Kentucky Counties. These conditions are mandated by the statute that created Pretrial Diversion for Class D felonies.
- The Court will tell you how long the Pretrial Diversion will last, which can be up to five years, and how much prison time you will receive as a result if you violate the terms of your Pretrial Diversion.
- If you are convicted for any other crimes during the Pretrial Diversion then the prison time avoided by this deal will be added onto any prison time for the subsequent violation.
- You have to obey all the rules and regulations imposed by your local Probation and Parole Office.
- Possession of a firearm or any other deadly weapon is prohibited until you have completed your Pretrial Diversion.
- You must remain drug and alcohol free during your Pretrial Diversion. You are subject to random drug testing that is generally conducted by your local Parole and Probation Office. (The fee for this in Kentucky is usually ten dollars a month as of 2014. Most Probation and Parole Offices require it to be paid with a money order).
- If the felony you are receiving Pretrial Diversion for resulted in an economic loss of any kind to a victim. Then you have to make restitution to the victim so they can recover any money that they have lost.
As I mentioned before, the conditions of a Pretrial Diversion Order will vary slightly from Judge to Judge. The previously mentioned Pretrial Diversion requirements are mandated by statute. However, Judges have some discretion to add more requirements for Pretrial Diversion. Some examples I have seen are requiring the Defendant to complete community service hours and maintain a full time job or attend college full time. Also some Judges are insistent that all Pretrial Diversions last for the five year maximum allowed by law. While other Judges will allow shorter terms. If you hire an attorney who is familiar with the area where your case is pending they should be able to tell you about the tendencies of local Judges.
Please remember that a failure to satisfy any of the requirements of your Pretrial Diversion will result in your deal being revoked and you will go to prison without a trial because you have already plead guilty.
What are the Benefits of Pretrial Diversion?
The most immediate benefit of Pretrial Diversion is you can avoid jail time even if you would likely be convicted if you went to trial. After you complete the Pretrial Diversion you can file a motion with the Court to have the entire case voided and removed from your criminal record. In the long run this is the most valuable part of Pretrial Diversion. As it allows people to learn from a mistake and not be punished for it for the rest of their lives by a felony conviction on their record.
If you have any questions about Pretrial Diversion or you think you may qualify for the program call Hurst & Hurst Law at (859) 209-2101.
27 Comments
Can I buy or sell a gun after I finish the program
After a person completes the program for pretrial diversion the charge does not count as a conviction and the charge does not have to be listed on an application for employment or for a licence, UNLESS it is required to be disclosed by Federal Law. KRS 533.258 I am not at this time aware of a Federal Law that requires you to disclose pretrial diversion to purchase a gun.
[…] determine whether the facts of the charge support a conviction, a lesser charge, would qualify for pretrial diversion, or even a dismissal of the case. Understanding your charge, whether it is a felony or […]
[…] to a lesser charge. In some cases defendants are allowed to avoid incarceration altogether with Pretrial Diversion programs. However, a traditional guilty plea does require the criminal defendant to admit that […]
[…] KRS 218A.1415 possession of a controlled substance can be considered a Class D Felony depending on the classification of the substance. A conviction for possession of a controlled […]
If on felony diversion will that effect me getting a job or an apartment?
While on diversion, the charges will show up on most background checks. Once you have completed diversion you may be able to get the charges expunged from your criminal record.
When your diversion is up do you have to pay for your record to be expunged?
Yes, you have to file a request to the Kentucky State Police to certify the charge as expungable and pay a fee of $60. Then the paperwork must be filed with the Court withing 30 days to be expunged.
If I apply to rent an apartment will it show up on my record and cause me to not be able to rent?
While on diversion, the charges will show up on most background checks. Once you have completed diversion you may be able to get the charges expunged from your criminal record.
If you completed a diversion plan, do you have to ask the court to show it as dismissed or will it show that on its own/ or how will it show up on your background check?
Once you complete the diversion program, the charge should show up on your criminal record as dismissed or diverted. To completely remove them you have to have the record expunged.
If you’re completing the diversion then if you’re applying for a job do you have to answer yes to felony charge or will they see it? I need to find a job before my company starts laying off but I don’t know if that will show up
Once you have completed diversion, you can petition the court to have the record expunged. After it is expunged it will not show on your background checks. However, until or unless it is expunged, a diversion program will show up on most background checks.
Can two people on diversion get married in the state of Kentucky?
Pretrial diversion has no effect at all on a person’s right to marry. Therefore, if you otherwise have the right to get married, then two people on diversion can get married.
My husband is charged with 2 class d felonies for assault on corrections officers. This is his first felony charges. The only trouble he has ever been in is traffic violations. Would he be eligible for pretrial diversion?
When diversion is applicable will depend largely on the jurisdiction that the case is in and the specific circumstances of the case. Unfortunately, from the information you have here, I cannot fully answer your question. If you would like to call the office and set up a free consultation, we can attempt to better answer your question.
How long after your diversion is completed can you apply for expungement?
Under felony diversion, typically as soon as you complete the diversion program you can request to have the charge expunged.
Thank You Rebecca.Your posts are very helpful.
Now to get criminal charges expunged in Kentucky requires a certification and background check from the Kentucky State Police.
Can someone on diversion travel out of state for vacation or work?
Casie, thanks for reaching out. That would depend on the specific terms of your diversion agreement.
if you completed diversion then got more charges does your past offense still show up?
Lex, thank you for contacting us. The answer to your question depends on what stage you are in your diversion program, the type of back ground check used and the time that has passed since you completed diversion.