 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Ross10/4/2005
should examine the plain language of the deferred prosecution agreement rather than the subjective intent of the parties entering into it. Here, as detailed above, the plain language of the agreement clearly defines defendant's charges, imposes certain duties upon him, and states that if he fails tocooperate with or perform those duties, he will be returned to court for sentencing of his "case(s)." The "case(s)" referred to in the agreement are detailed as " his case coming on to be heard before the undersigned presiding judge, wherein [defendant] is charged with the criminal offense of 5 cts fail to file/Pay Income tax." There is no indication that "case(s)" refers to the felony charge thereafter sought by the State, or any other charge. By unilaterally engrafting the additional felony charge into the agreement, I believe the State violated defendant's right to fundamental fairness and due process.
In Lassiter v. Department of Social Services, 452 U.S. 18, 68 L.Ed. 2d 640 (1981), the United States Supreme Court recognized that
For all its consequence, "due process" has never been, and perhaps can never be, precisely defined. " nlike some legal rules," this Court has said, due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.
Id. at 24-25, 68 L.Ed. 2d at 648 (citation omitted).
In North Carolina, although deferred prosecutions are becoming increasingly more common (most often in those situations where a first-time offender faces narcotics or driving under the influence charges), our courts have yet to address the numerous issuesinvolved in the execution and satisfaction of their underlying agreements. Nevertheless, the fundamental idea of a deferred prosecution is clear: the defendant agrees to perform certain duties and conditions placed upon him by the trial court, in exchange for the State's agreement to dismiss the defendant's charges upon his or her completion of those duties. In the instant case, although he initially complied with the duties and conditions placed upon him, defendant failed to complete those requirements listed in the deferred prosecution agreement. Thus, by virtue of its terms, the State was well within its rights to thereafter pursue sentencing on the charges detailed in the agreement. However, the State chose instead to dismiss the misdemeanor charges and pursue conviction on a felony charge. As discussed above, this decision was counter to the express terms of the agreement both relied upon by defendant and adopted by the parties. Because I conclude this decision was also counter to the right to fundamental fairness and due process granted by our Constitution, I would reverse defendant's conviction for aiding and abetting the embezzlement of state property. Accordingly, I dissent.
|