Davis

Defendant and appellant Kenneth Davis obtained a certificate of probable cause to appeal on the ground he was erroneously denied deferred entry of judgment. Following the denial, Davis pled guilty to one count of possession of cocaine (Health & Saf. Code, § 11350), the prior conviction allegation was dismissed in the interest of justice, and he was sentenced to two years in state prison. Davis now appeals the denial of his motion for deferred entry of judgment. (Pen. Code, § 1000 et seq.)

In this case of first impression, we are called upon to determine whether the deferred entry of judgment statutory scheme, effective three years after the enactment of the “Three Strikes” law, is prohibited for third strike offenders. Butler v. Superior Court (1998) 63 Cal.App.4th 64 [ 73 Cal.Rptr.2d 504 ], failed to reach the issue on petition for writ of mandate only because “[t]he sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal.” (§ 1000, subd. (b).)

We find the allegation of a prior conviction within the meaning of the Three Strikes law does not render a defendant ineligible for participation in the deferred entry of…