Pretrial & TrialApril 10, 2023
Criminal AppealJune 10, 2023
Sentencing & Post-Conviction
After entry of a plea or conviction at trial, a criminal case moves to sentencing. Sentencing is the specific sanctions or punishments that are ordered for the guilty charge.
Each specific criminal charge contains in the statute a minimum and maximum sentence for that charge. Sentencing is determined by the jury after the trial is concluded and can include a variety of different options, including incarceration and fines.
If a defendant has been convicted of multiple offenses or where there are prior convictions that have not yet been fully served, the judge may have the discretion to determine how the new convictions will "run."
The new convictions may be directed to be served consecutively or concurrently with each other, and consecutively or concurrently to other previous convictions. Within certain limitations, the judge may impose combinations of sentences where there are multiple convictions.
A consecutive sentence, or cumulative sentence, is one which does not begin to run until the expiration of a prior sentence concludes. Consecutive sentences follow one another and adds (as opposed to combining) to the duration of one's sentence.
Concurrent sentences are served simultaneously.
Upon receiving the jury's decision as to the length of sentence, the judge has the discretion to consider the various sentencing alternatives.
- A FINE - Some criminal charges only carry with them a fine, while others include fines and costs in addition to incarceration. The sentencing court may issue a criminal garnishment order for all fines and for court costs, restitution, and reimbursement charges. In these situations, the court must combine all fines and costs into a single order of garnishment
- RESTITUTION - Full or partial compensation for loss paid by a criminal to a victim
- FORFEITURE OR CONFISCATION OF PROPERTY - Seizure of a defendant’s property that was used or acquired through criminal means
- CONDITIONAL DISCHARGE OR PROBATION - Suspending incarceration, and releasing the defendant either supervised or unsupervised by probation
- A 'SPLIT SENTENCE' - A mixture of the incarceration of alternative sentencing options
- HOME INCARCERATION - All or part of a defendant’s incarceration occurring at the defendant’s home
- INCARCERATION - continuous confinement in a city, county, or regional correctional institution or with the corrections department
- DEATH (Where authorized)
Subsequent Offense Enhancement
Some charges do contain provisions for “enhanced sentences” for subsequent offenses. Meaning that the entered sentence can later be increased if the defendant is found guilty of committing a subsequent offense. This is seen most often in driving under the influence (DUI) charges.
Persistent Felony Offender - PFO
Under the persistent felony offender statute, the defendant may be sentenced to a maximum of life imprisonment upon proof of a requisite number of prior convictions where the defendant is convicted of certain classifications of felonies. Once the status of a persistent felony offender has been established, the defendant can receive enhanced punishment for each and every subsequent felony.
The persistent felony offender provision does not create an independent offense but merely serves to enhance the punishment for a crime committed by a person who qualifies as a persistent felony offender. Although a conviction for a capital offense such as murder is not subject to PFO enhancement.
Probation and Conditional Discharge
Probation is granted when the sentencing court suspends the execution of a sentence of imprisonment conditionally and releases the defendant under the supervision of a probation officer. Conditional discharge is granted when the sentencing court suspends the execution of a sentence of imprisonment conditionally and releases the defendant without supervision. Alternative sentencing may include probation, shock probation and conditional discharge, but there are some situations in which alternative sentencing is not an option.
Shock ProbationShock probation is probation granted within a specified time after the defendant has commenced service of their sentence. Consideration for shock probation must be initiated by the motion of the defendant within specific timeframes. A defendant released on shock probation may be recommitted for failure to abide by any conditions imposed at the time of release.
Not Eligible for Alternative Sentencing If...
- convicted of a capital offense and sentenced to death,
- convicted as a persistent felony offender*
- convicted of a Class A, B, or C felony involving the use of a firearm**
- convicted of a sex-related offense against a minor
- convicted on a repeat offense of drunk driving
- designated as a violent offender
Once the sentence is imposed, the trial judge has authority to modify the sentence under certain circumstances. A modification can be in favor of the defendant, such as by granting a motion for shock probation. A modification can also work against the defendant, such as revocation of probation or conditional discharge.
Revocation of probation or conditional release
If a defendant acts to violate the terms of their probation or conditional release or receives new criminal charges, proceedings can be initiated to revoke their probation or release.
A defendant against whom proceedings have been initiated must be given a prompt probable cause hearing to determine whether there is reason to detain them, pending a final hearing. The final hearing would then determine if their probation or release should be permanently revoked.
Pretrial diversion may be used for a person charged with a Class D felony offense who has not, within 10 years immediately preceding the commission of the offense, been convicted of a felony under the laws of this state, another state, or of the United States, or has not been on probation or parole, or who has not been released from the service of any felony sentence within 10 years immediately preceding the commission of the offense If the defendant successfully completes the provisions of the pretrial diversion agreement, the charges against the defendant shall be listed as "dismissed-diverted" and shall not constitute a criminal conviction. The defendant shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law. Pretrial diversion records shall not be introduced as evidence in any court in a civil, criminal, or other matter without the consent of the defendant