Pretrial Probation For A Felony Charge Or A CWOF For A Misdemeanor…Which Is Better?


Pretrial Probation for a Felony or a CWOF For a Misdemeanor

Anytime you can dispose of a criminal case and not have a record you should really think about taking the deal that is on the table. Unless there are potential collateral consequences the risk of going to trial usually outweighs the reward. Obviously this is not always the case. There are times when an experienced lawyer will be confident recommending challenging a constitutional violation or having a jury waived trial over a pretrial resolution. But usually the opportunity for pretrial probation or a continuance without a finding is preferred. There are however times when a decision between pretrial probation for a felony charge or a CWOF for a misdemeanor must be weighed. Here are some thoughts on that dilemma.

Felony Reduced to a Misdemeanor in Exchange for a Continuance Without a Finding

Your attorney might recommend taking a CWOF on a misdemeanor in exchange for the prosecutor dismissing the felony. Take for instance a case I recently handled. The defendant was charged with malicious destruction to property over two hundred fifty dollars. This is a felony in Massachusetts. The defendant has a history of mental illness and unpredictable behavior that has landed him in the criminal courts on several occasions in the past. The district attorney agreed to pretrial probation for one year with a condition of anger management counseling. From my perspective that outcome was not the best option. The defendant has had difficulty meeting conditions of probation in the past. Attending and successfully completing an anger management program was dubious. So, my client rejected pretrial probation and we convinced the judge to continue the case without a finding for thirty days with no probationary conditions.

Pretrial Probation For The Felony Charge

Here is another scenario in which I was recently involved where my client prudently selected pretrial probation over the CWOF. This individual was charged with possession with the intent to distribute class B. This is a felony in Massachusetts. We had a decent shot at winning a motion to suppress that was filed and scheduled for hearing. Recognizing this, the assistant district attorney offered pretrial probation to the pending felony charge. She offered alternatively a continuance without a finding to a reduced charge of possession of class B, a misdemeanor. The decision for my client was an easy one. Take the pretrial probation. Here is why. If he gets in trouble during the probationary period the CWOF can convert to a guilty without any opportunity to defend. In other words, if he even gets charged with another crime he can be incarcerated for up to a year on the class B possession case that was CWOF’d.

Conversely, if my client commits a crime while on pretrial probation period the only adverse consequence is that the prosecution might revive the case against him. And if they do, he still has the strong motion to suppress to litigate and the possibility of CWOF on the felony should he lose that motion. The decision was an easy one.

Contact An Experienced Drug Defense Attorney In Massachusetts

Attorney Stephen Neyman has been successfully defending criminal defendants for nearly three decades. If you need help call us at 617-263-6800 or simply send us an email. We can help you.