If you enter a guilty plea to a criminal offense or are found guilty at a trial before a jury or a judge, there are a number of options available in terms of sentencing.
If you are convicted of a misdemeanor, you may be sentenced immediately. In a felony case, once a conviction enters, sentencing is usually set for a date about six to eight weeks after the conviction. During this time period, a presentence report is prepared by the probation department for the judge to use at sentencing.
The presentence reports contains information from the police reports, an interview with the person being sentenced, any criminal history and information from family and friends of the person being sentenced. There is usually a recommendation from the probation department for a specific type and length of sentence. The presentence report is heavily relied upon by most judges and is an opportunity for a person to present information in a positive light in order to mitigate the sentence.
Although many people believe that sentencing means incarceration, there are actually many other available alternatives. Sentences can include combinations of incarceration (prison or jail), probation, community corrections, restitution (victim compensation) fines, court costs or community service. Most judges prefer to sentence first time offenders to community service or probation, except in the most serious cases, or in those cases where mandatory sentencing is set by statute.
An experienced criminal defense lawyer who is familiar with the judges and prosecutors can make a difference during this critical stage of a case. Judges usually have discretion when it comes to sentencing. You want an attorney who takes the time to gather pertinent information that can have a favorable impact on the eventual sentence. A persuasive attorney who prepares an effective and thorough presentation can mean the difference between incarceration and probation.
In misdemeanor cases incarceration can mean a sentence in the county jail. Due to constant overcrowding in most jail facilities, most counties have devised alternatives to a direct sentence in the county jail. Work release is a type of sentence that can be served at night, allowing a person out of jail during the day for employment. Work Crew is a sentence which allows a person to work on a one day work crew, but sleeping at home at night. Home detention is a type of sentence served in a person’s own home with an ankle bracelet. There is also day reporting which requires a person to report to the jail daily for possible drug or alcohol testing in the morning with no further incarceration requirements. Some judges will allow a person to attend an inpatient drug or alcohol program in lieu of jail.
For a felony, incarceration means a sentence to the department of corrections (prison). Judges will often allow these prison sentences to be served in a community-based facility called community corrections.
Probation is often imposed for first time offenders, or for people who the court considers to be low risk to the community. Probation usually carries a number of conditions which must be met. Violations of the conditions of probation can result in a jail or prison sentence. Conditions of probation can include:
- Abiding by all laws, including misdemeanor, petty offenses and felonies
- Maintaining full time employment or school
- Restitution to the victim
- Maintaining a residence
- Reporting to a probation officer
- Abstaining from alcohol or drug use
- Mental health or domestic violence treatment
- Abiding by any other orders of the court, such as no contact with the victim
- Remaining in the state
- Probation officers can also make unannounced visits to a person’s home or work and can require random drug or alcohol tests.
HOW A JUDGE DECIDES TO GIVE PROBATION
Judges look at a number of factors when deciding whether or not to grant probation or impose a jail or prison sentence. These factors include a person’s criminal history, the seriousness of the offense, remorsefulness, and ability to make the victim whole. They also assess whether or not a person has drug, alcohol or mental health issues which makes the person a danger to the community or if those issues are treatable.