Filing and deferred disposition agreements each provide a way to arrive at dismissal of a criminal charge. Filing agreements have been around longer than deferred disposition agreements. Filings are governed by Rule 11B of the Maine Rules of Criminal Procedure. In a filing agreement, the prosecutor and the defendant agree that if certain conditions are met during the filing term, the case will be dismissed at the end of that term. If the terms are not met, the state may move to reinstitute the charge, which is to say they may re-commence the prosecution. The maximum filing period is one year. Sometimes cases are filed for 6 months, and sometimes for a matter of weeks or for a month simply as a vehicle to extract “court costs” from the defendant. Always, the agreement calls for the defendant not to engage in any criminal conduct or conduct of the same nature as that involved in the filed charge, and sometimes the agreement involves a condition that the defendant must not commit any other violations of law at all, including traffic infractions or civil violations, during the filing term. Filing agreements sometimes include a condition that the person must perform a certain amount of community service, which often must be completed before the agreement is actually filed with the court clerk. Filing agreements also commonly include a condition that the person must pay court costs. Before 2009, it was necessary for a judge or justice to approve a filing that involved court costs, and the amount of costs was to be justified by the actual cost of the prosecution (which was impossible to establish). Under a 2009 rule change, the Law Court dispensed with both requirements. Now a filing on costs does not have to be approved by a judge or justice and costs can be in any amount that does not exceed the maximum possible fine for the charge. The prosecutor and the defendant simply sign the agreement and file it in the clerk’s office. At the end of the filing term, if the conditions have been met, the charge is to be dismissed by the court clerk and that is the end of the matter. There is one exception that allows a prosecutor to reinstitute a charge or bring a separate prosecution for the same charge without cause, but that requires the prosecutor to expressly reserve the right to do so in the filing agreement. In my experience, it is extremely rare for a prosecutor to seek to insert such a clause. Especially for those who are serious about avoiding trouble with the law during the filing term, a filing agreement provides a tremendous opportunity to nail down the dismissal of a criminal charge.
Ed Folsom, Biddeford, Saco, Portland, Maine Criminal Defense, OUI, DUI Attorney. York County, Cumberland County.