How Your Sentence Is Determined
When someone is charged with a criminal offense the charge may be resolved in one of three ways:
- Dismissal – The prosecuting attorney dismisses, or “drops,” the charges against you.
- Plea agreement – You agree to plead guilty in exchange for a pre-determined sentence, a reduction in the severity of the charges against you, and/or the dismissal of additional charges.
- Trial – A judge or jury decides your fate.
There are several common factors that are typically considered when deciding a defendant’s sentence. Factors that are typically considered during sentencing include:
- Severity of the offense – Felonies carry a harsher potential sentence than misdemeanors. In addition, violent crimes are often viewed as more serious than a non-violent crime within the same severity level.
- Victim statement – If the crime included a victim, the victim’s opinion will usually carry a considerable amount of weight with the sentencing judge.
- Defendant’s criminal history – If you are a repeat offender you may face mandatory sentencing. At the very least, the judge will likely consider a harsher sentence because of your criminal history.
- Acceptance of responsibility – A judge will often, but not always, be more lenient if you accept responsibility by entering into a plea agreement.
- Personal circumstances – Things such as a history of drug addiction, abuse, or mental illness will often be relevant at sentencing.
Probation in California
If you are sentenced to probation as part of your sentence, it is important that you understand what probation means in California. Specifically, you should understand the following terms and concepts:
- Suspended sentence – Typically, a judge will actually sentence you to a term of incarceration but then suspend the sentence. If you violate your probation, however, you can be ordered to serve your suspended sentence.
- Formal probation – Formal probation is usually used when a defendant is convicted of a felony offense. Not all felonies, however, are eligible for probation. While on formal probation you must report to a probation officer on a regular basis. Formal probation generally lasts for three years or more.
- Informal (summary) probation – Informal probation is ordered when a defendant is convicted of a misdemeanor and the defendant is not considered to be a high risk offender. In addition, informal probation does not require a probationer to report to a probation officer. Informal probation generally lasts for anywhere from six months to three years.
- Sex offender registration – If you are convicted of certain sex offenses, you will be required to register as a sex offender.
Violating Your Probation
Probation violations fall into two broad categories:
- Technical – This includes things such as failing to pay restitution, failing to maintain employment, or failing to appear for a scheduled hearing.
- New offense – Probationers are often unaware that they can be violated for being charged with a new offense.
If you are charged with a violation, you have the right to defend yourself against the allegations and to have an attorney represent you at the hearing. If the judge finds you in violation, one of three things can occur:
- Continue probation unchanged – If the violation was a relatively minor one and you provided the court with a reasonable explanation for the violation, the judge may simply continue your probation without any change.
- Continue probation with changes – For more serious violations, the judge may allow you to remain on probation but may modify the terms of your probation.
- Revoke probation – The judge can revoke your probation entirely. Serious and/or repeat violations are most likely to end in revocation. If the judge revokes your probation, you will likely be ordered to serve some, or even all, of your suspended sentence, or “back-up” time.
If you have questions about your probation or are concerned that you have violated your probation, consult with an experienced California criminal defense attorney right away.