Sentencing is a court hearing where the judge determines punishment. The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court.
A defendant may be sentenced to Probation instead of prison/jail. However, he/she may be ordered to do some local custody time as a term of his or her probation. If a person violates his/her probation, he/she may be incarcerated.
Formal probation is when an individual is supervised by a probation officer.
Informal or administrative probation is unsupervised.
If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the low term, mid term, and high term. Lawyers argue about the proper term based on the facts of the particular case. The final word is within the judge’s broad discretion.
Sentencing modifications occur when part of a person’s sentence becomes inapplicable to their case. For example: Suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to “modify” the man’s sentence.
7 things to consider regarding sentencing:
1. The judge almost always determines punishment.
2. The judge may be required to follow specific sentencing guidelines.
3. The eighth amendment to the U.S. Constitution provides that punishment may
not be cruel or unusual.
4. Factors such as no criminal history, a good public record, and professional or
personal responsibilities may persuade the judge to provide a lighter
5. A previous criminal record, use of a dangerous weapon, gang ties, degree of
injury or financial loss, and the type of conviction may persuade the judge to
provide a harsher sentence.
6. Judges almost always give repeat offenders stiffer sentences.
7. If the defendant is not planning on appealing the case, this may be an
appropriate time to acknowledge responsibility in order to convince the judge
to give a more lenient sentence.
Circumstances That Can Adversely Affect Sentencing:
(1) Previous Criminal Record.
A defendant’s past record is a large consideration when determining an alternative or lesser sentence within the lower end of the sentencing guidelines. A previous record can also affect the level of security of the facility that the defendant will be sent to as a result of sentencing. Most correctional facilities use a point system unfavorable to repeat offenders costing them time deducted from their sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of penitentiaries.
Most states carry statutes which call for stiffer penalties if a defendant’s crime involves the use of a dangerous or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. Enhancements generally increase the sentencing penalties. In some states, enhancements are not a separate charge and are considered part of the primary offense such as armed robbery.
Some alternatives to jail that might be negotiated are:
-Electronic Home Monitoring
-Residential Treatment Centers
-Weekend Work Programs
Collateral Consequences of a Conviction
In addition to any sentence imposed by the court, a conviction can have a number of independent consequences. On felony cases, these consequences can include, but are not limited to:
-Loss of the right to vote.
-Loss of the right to possess a firearm of any kind.
-Loss of the right to associate with known criminals.
-Registration as a sex offender.
-Increased penalties for future criminal convictions
After a defendant has been found guilty by way of trial, the defense attorney may request a higher (4th District Court of Appeals in Palm Beach) court to review specifically identified flaws in procedure with the possibility of changing the lower court’s decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict.
An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court’s decision. The second attempts to overturn the courts sentencing decision.
The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.
Once the trial has been completed, the facts have been decided. They can’t be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper procedural issues, he may be able to win the appeal. These defects in procedure may include any of the following:
– The judges instructions to the jury were improper
– The prosecution made improper comments to the jury
– Jury tampering
– Improper introduction of evidence
The timeline of the appeals process varies from state-to-state. Some post conviction tactics to get relief for the defendant include:
Motion for Acquittal
Motion For New Trial
Motion For New Sentencing
Appeal To Appellate Court
Appeal To State Supreme Court
Appeal To U.S. Supreme Court