Florence, AZ asked in Criminal Law and White Collar Crime for Arizona

Q: can a lawyer not offer a diversion program if the person qualifies for one being it's first offence and felony changes

I was convicted of theft and tariffing I was given 2 case 6 felonies,18 month probation, and 900.00 fine. At the time I should have been offered a PRETIAL FELONY DIVERSION PROGROM. I qualify for the requirements. My question is do I have a chance at another hearing, what step do I take to get this corrected?

1 Lawyer Answer
Stewart Salwin
Stewart Salwin
  • Criminal Law Lawyer
  • Scottsdale, AZ
  • Licensed in Arizona

A: It is ultimately up to the prosecuting agency to determine what type of plea offer to grant to a defendant. This is a matter of policy by the prosecutor's office. Arizona courts have long held that "[c]riminal defendants have no constitutional right to a plea agreement and the State is not required to offer one." State v. Jackson, 209 Ariz. 13, 15, ¶ 6 (App. 2004). So technically, if the prosecutor wanted to, he or she could refuse to offer any plea at all and take the case to trial. A criminal defendant would have no recourse against this sort of action. The same holds true for a diversion program. As a matter of fact, until relatively recently, prosecuting agencies such as the Maricopa County Attorney's Office did not usually offer diversion except for very minor, first-time drug offenses.

That being said, a defense attorney can try to negotiate with the prosecutor to attempt to get a better deal, including diversion. But it will be the prosecutor who makes the ultimate determination as to what plea to offer.

Matthew Maerowitz agrees with this answer

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