What is a Plea in Abeyance?

No. A plea in abeyance agreement is reached between the defense and prosecutor. The defendant is required to satisfy conditions set forth in the agreement, and after the terms are met successfully, the case is usually dismissed. The plea in abeyance agreement allows both the prosecution and defense to avoid the costs and risks of a jury trial.

Defendants can qualify to obtain a plea in abeyance in cases with charges ranging from misdemeanors to first-degree felony cases. In certain cases, defendants may not be eligible for a plea in abeyance agreement. In such cases, a defendant may still be able to qualify for a diversion, which is a different kind of plea negotiated with the prosecutor.
Defendants do not qualify for a plea in abeyance in:

• Cases involving charges of a sexual offense against someone under 14 years of age
• Cases involving DUI charges
• Cases in which the defendant and prosecutor do not agree on a plea

Typically plea in abeyance agreements are only available to defendants who lack a prior criminal record, and prosecutors generally offer such pleas as a limited one-time offer. In addition, the criminal charge that you face must itself qualify. Utah’s Uniform Fine / Bail Schedule outlines the charges that permit pleas in abeyance in Utah. To see if you qualify, locate the violation you are charged with. The violation code will appear on the citation that was presented to you by the police officer who cited you. The column titled “Man Appr” will indicate whether or not the violation you are charged with qualifies for a plea in abeyance. If the violation you are charged with is marked “Y,” you cannot enter a plea in abeyance with the court clerk and must instead personally appear in front of a judge. However, if the offense is marked “N,” you can enter a plea in abeyance with the court clerk.

To get a plea in abeyance agreement, you have to negotiate with the prosecutor and convince him or her to offer it. A judge cannot order a plea held in abeyance without consent from the prosecutor. This offer is not offered freely by prosecutors. It may require an experienced trial attorney, skilled in such negotiations to convince a prosecutor that it’s a sound idea to offer a plea in abeyance agreement.

Prosecutors weigh a number of considerations, to help them determine what is reasonable for them to offer. For example, if your attorney can identify potential problems with the evidence, or offer mitigating facts about you (such as no prior criminal convictions, productive activities like work or school, doing volunteer work, attending counseling, etc.), the prosecutor may decide to agree to abeyance.

With a plea in abeyance, the court is accepting a plea of guilty or no contest. But, the court does not then follow through with entering the plea into the court record as a conviction. The court instead holds the plea in abeyance, while the defendant is fulfilling the terms of the abeyance agreement made between the defendant and the prosecutor.

This means that although your case may remain on the public record, it should not appear in a criminal background check, whether the check is done before or after the case has been dismissed, if the check is only searching for convictions either.

With a plea in abeyance, more thorough criminal background checks that search for arrests and court cases may still show a record of the case, even after it has been dismissed.

Completing the terms of your plea in abeyance agreement can allow you to avoid having a record of criminal conviction. However, after the charges against you have been dismissed, you must obtain an expungement of your record, in order to clear the case from your record.

Court records will continue to show the criminal charges, your plea, and the status of your plea in abeyance. Once the case is dismissed, the court records will still contain the court proceedings and show that the case was dismissed, unless and until you receive an expungement of your record.

Expungement is the usual process for clearing a record after a plea in abeyance is successful and a case has been dismissed. The process for expungement requires submitting an application to the Utah Bureau of Criminal Identification (BCI), submitting a petition to the court, and providing documents to the prosecutor. All parts of the process must be completed in order to expunge the criminal record.

There is a 30-day waiting period before the defendant is permitted to apply for the certificate of eligibility for an expungement. (By contrast, the waiting period to apply for an expungement after a conviction is 3 to 10 years.)

After an expungement order is entered, the order is also sent to government agencies that maintain the court or arrest records, requiring them to respond to inquiries about the case as if the records do not exist. The expungement order also permits the person with the expunged record to answer any inquiries about your background as if the arrest or criminal conviction did not happen.

Two of the most common ways to obtain a plea in abeyance agreement from a prosecutor in Salt Lake County are through the county court’s ASAP program or drug court. Drug court convictions tend to lead to a lengthy prison sentence held in abeyance. In some cases, a defendant may be able to get a plea in abeyance without going through one or the other. But, a prosecutor is more likely to require participation in one or the other, in order to hold a plea in abeyance.

Multiple appearances before the judge may also be required, to help ensure the defendant is staying sober, and sanctions may be imposed on a participant who fails to comply fully with conditions of the program.

A sentence held in abeyance is a sentence handed down by a judge, but not imposed on the defendant as in the normal course following conviction. Instead, the sentence held in abeyance, which means it can be imposed at any time the court deems appropriate.

When you agree to a plea in abeyance, you waive most rights of a criminal defendant. (Utah Code 77-2a-3) These rights include right to jury trial, right to call witnesses, confront and cross-examination witnesses, the right to testify on your own behalf, and the right to an appeal, among others.

When the court accepts your plea of abeyance, you cannot later withdraw the plea, except by filing a written motion no later than 30 days after you plead no contest or plead guilty and demonstrate that you did not voluntarily make the plea of abeyance.

If the court determines that you have not substantially complied with each condition as agreed, without a permissible cause for the failure, the judge may terminate the plea in abeyance agreement, hand down a conviction, and proceed with sentencing.