Since most criminal cases end in either a guilty verdict or a guilty plea, sentencing is a very important issue for most criminal defendants. Unless there is plea agreement between the District Attorney and your lawyer, the judge will decide whether you go to jail or go on probation and for how long. It will be up to your lawyer and you to help the judge decide in your favor.
When a defendant pleads guilty it will be either a negotiated or open plea. A negotiated plea means that you and the District Attorney decide at the time of the plea what your sentence will be. While a judge does have the right to reject the sentence that is recommended, that very rarely happens. (If the judge does reject the sentence you can take back your plea and go to trial or negotiate another sentence.). If the plea is “open” then the judge will decide the sentence. Usually the judge will ask for a sentence report from either your attorney or probation to help him decide. Normally the sentence in an “open” plea occurs about 30 days after the plea.
Some crimes require a jail sentence of a certain time limit. In that case the judge must sentence you to at least the minimum time called for by the law, although he can give you more. For instance, if you are guilty of Driving Under the Influence (DUI) and are a first offender with a blood alcohol content of .13, you must be sentenced to 48 hours in jail. It can be more, but not less. If guilty of selling drugs near a school or playground the judge must sentence you to at least two years.
If no minimum mandatory sentence applies then the judge will review the sentencing guidelines to determine your minimum time in jail or, if you qualify for a sentence of probation. The sentencing guidelines are a chart that uses the type of crime you committed and any prior criminal record that you have. Every crime is given an offensive gravity score and certain crimes previously committed are given a score. The graph will then give the judge a range of sentences with mitigating or aggravating factors. For instance, if you committed aggravated assault and caused serious bodily injury, but you have no prior record, your range of a minimum sentence is 36-54 months. It would be more if you have a prior record.
Sometimes a person is guilty of two different crimes. If a person commits a burglary and assaults someone in the building, he is guilty of burglary and assault. Each crime carries a separate sentence. Let’s say the judge gives you 9-23 months for the burglary and 6-12 months for the assault. If the sentence is consecutive you must complete the minimum of 9 months and then start your 6 months. You will be in jail for 15 months and be on parole for 20 months thereafter. If the sentence is concurrent then they run at the same time. Therefore you would be in jail for 9 months and be finished your parole in 14 months thereafter. (Of course, if you violate your parole you may be in violation of two sentences.)
In deciding your sentence the judge will also decide if you must pay restitution (if you stole $100.00 you must pay that back to the victim), get drug treatment, etc.
If the judge is to decide your sentence your lawyer will make sure that the judge knows all the good things about you. He may collect letters from your employer or people in the neighborhood to tell the judge that you are not as bad as the District Attorney will say you are. He may also bring witnesses to talk to the judge for you. These are just some of the things that your lawyer will do.
Please Note: The information presented is not legal advice, and your use of it does not create an attorney-client relationship. No recipient should act on the basis of any content included in the site without seeking the appropriate legal advice from counsel. Lawrence R. Dworkin, Esq. expressly disclaims all liability in respect to actions taken based on any content of this site. Because every case is different, any prior results described on this web site do not guarantee or suggest a similar outcome.