Criminal Law: Sentencing, Parole & Probation FAQ

Lawyers.comsm
  • What is a presentence report?

  • Who sets a sentence and how is it determined?

  • What's the point of a suspended sentence?

  • Does community service or probation still go on your permanent record?

  • Is there any difference between being sent to jail or prison?

  • What's the difference between parole and probation?

  • Can I move if I'm on probation?

  • Do I have to complete the entire probation time?

  • Can probation be revoked?

  • Can you appeal being found guilty of violating probation?

    Q: What is a presentence investigation report and what is it used for?

    A: A presentence investigation report, often called a "probation report," is a report prepared to help the judge decide what sentence to give someone who has either pled guilty to a crime or been found guilty of a crime.

    The report is prepared by a probation department, which should be a neutral agency, as it is independent from both the prosecution and the defense. The report will include sections on the defendant's personal and employment history and prior criminal history, as well as details of the offense. While the probation officer interviews the defendant, he or she will often describe the details of the offense as set out in police reports received from the prosecutor. The report may also contain statements from victims. The report will often conclude with a sentencing recommendation.

    With the possible exception of the final sentencing recommendation, the report is given to the defendant before sentencing, so that the defendant can object if desired.

    While presentence reports don't determine a judge's sentence, judges rely heavily on them. You and your lawyer should make sure you've reviewed the report thoroughly and presented your objections before going to the sentencing hearing.

    Return to index . . .

    Q: Who sets a sentence and how is it determined?

    A: Typically, judges impose the sentence to be served by an individual who has pled guilty or has been convicted by a jury of a crime. Sentences must be within the guidelines set by law for a particular crime, which may include a fine, jail or prison time, or probation. The law that defines a crime may also define the maximum punishment that may be imposed by the judge or related statutes may contain the consequences. The judge may consider a number of factors when setting the punishment including:
    • The defendant's past criminal record
    • Age
    • Whether anyone was hurt or injured
    • Victim's impact statements
    • The circumstances surrounding the crime
    • Possibly the remorse shown by the defendant

    Some state and all federal criminal statutes include "mandatory sentences" which require judges to impose specific and identical sentences on all defendants who violate those laws.

    Return to index . . .

    Q: What's the point of a suspended sentence?

    A: A "suspended sentence" is one that's imposed but not carried out. If you stay out of trouble, you don't have to serve the sentence. Judges often give first time offenders suspended sentences as an incentive for keeping out of trouble. It also frees up scarce jail space for more serious offenders from whom society needs to be protected. At the end of the suspension period, the judge lifts the sentence if you haven't gotten into trouble. But if you re-offend during your suspension period, it's off to jail for the length of your sentence.

    Return to index . . .

    Q: Does community service or probation still go on your permanent record?

    A: Community service and probation are types of criminal sentences. You can only be sentenced after you've either pled guilty to a crime or been found guilty by a judge or jury.

    If you pled guilty on a deferred judgment, sentence, diversion program or a deferred adjudication, you won't have a permanent record once you successfully complete the terms of the probation or community service. At that point, the law for all practical purposes considers the guilty plea withdrawn as if it was never entered. There are, however, some circumstances in which you can still be penalized for it. For example, deferred sentences count as one point in computing your criminal history under federal sentencing guidelines.

    If you pled guilty with no express conditions as to the deferment of the sentence or conviction, or if you were found guilty following a trial to the court or jury, you'll have a permanent record.

    If you pled guilty and don't know whether it was pursuant to a deferred sentence type of arrangement, you can go to the courthouse where you entered your guilty plea and ask to see your file. There will be a docket sheet or other listing of court minutes inside, containing the terms of your plea and sentence, including whether the judgment was deferred.

    Return to index . . .

    Q: Is there any difference between being sent to jail or prison?

    A: Jails are locally-operated correctional facilities. Inmates sentenced to jail usually have a sentence of one year or less, although this can vary by state. Jails also incarcerate persons in a variety of other categories, such as:
    • People being held pending arraignment, trial, conviction, or sentencing
    • Those who have been returned to custody following violation of the terms of their release on probation or parole
    • People being transferred to the custody of other criminal justice/correctional authorities

    Prisons are operated by either a state or the federal government, and confine only those individuals who have been sentenced to one year or more of incarceration. Generally, persons sentenced to prison have been convicted of a felony offense.

    Return to index . . .

    Q: What's the difference between someone on parole and someone on probation?

    A: Parole and probation are different forms of supervision after sentencing. Parole is supervision that begins after a person's release from prison or jail after serving part of a sentence. Parole is a privilege, not a right. While only a judge can sentence someone to a jail term, the judge doesn't decide how much of that jail sentence the person will have to serve before being released back into the community. This decision is usually determined by the state legislature. Most states have parole boards that make the decision whether to release an inmate once they become eligible for parole. If a person violates the terms of their parole, they can be sent back to jail to finish serving their sentence.

    Probation is a sentence that a judge can give instead of jail or in addition to jail or prison time. Like parole, it has conditions attached. If a person violates the terms of probation, the judge can then give them any sentence the judge could have originally given them, including a jail term.

    In the federal system, parole is no longer available, as federal sentencing guidelines apply instead. In federal cases, there is something called "supervised release." The length of a supervised release term is suggested by the sentencing guidelines, but in the end it's decided by a judge. Probation is available only in limited circumstances.

    Return to index . . .

    Q: Can I move if I'm on probation?

    A: It's fairly common for people on probation to want to move to another state. Courts will often grant a request to move, especially if there's a good reason such as a new job or to be closer to family.

    The process varies from state to state, so your probation officer can best tell you how to get the process going. Often, it's simply a matter of filing a motion with the court requesting permission to move and asking that your probation be transferred to where you want to relocate. You'd be reporting to a probation officer in your new location, just as you do with your current probation officer. You'd also be expected to keep up with any payments you're obligated to make while on probation, as well as any conditions such as drug testing.

    Your probation officer can also make a recommendation as to whether you need a lawyer to make your request to the court.

    Return to index . . .

    Q: Do I have to complete the entire probation time?

    A: Whether your probation officer can recommend an early end to your probation will depend heavily on state law. If you have accomplished all of what was expected of you, you can petition for an early release from probation.

    Return to index . . .

    Q: Can probation be revoked?

    A: Probation is a sentence with certain conditions that must be followed. If any of the conditions, such as no drug use, are violated, your probation officer will notify the court or prosecutor. The prosecutor may decide to file a complaint asking to have your probation revoked and put you back in jail. If this happens, you'll be served with the complaint and given a date to appear in court to answer it. At this point, you should find a lawyer. If you can't afford a lawyer, one will be appointed for you.

    In most states, a court has several options after finding that someone has violated the terms of his or her parole or probation. The court can impose any sentence that could originally have been imposed for the crime you originally committed, including jail. The court could also re-sentence you to probation, even on the same terms as before. Or it might re-sentence you to probation but increase the severity of the conditions of your probation, such as putting you in a half-way house or placing you on home detention or in an intensive supervision program, or requiring you to complete a drug treatment program.

    Return to index . . .

    Q: Can you appeal being found guilty of violating probation?

    A: In most states, you'll be allowed to remain free on bail while waiting for the judge's decision on whether you've violated probation.

    At the probation revocation hearing, the prosecutor must prove you violated a condition of your probation by a "preponderance" of the evidence, unless the state is charging that the violation consists of you committing a new crime. For a judge to revoke your probation because you committed a new crime, most states require the prosecutor to prove "beyond a reasonable doubt" that you committed the new crime. There is no jury trial in a revocation proceeding.

    If the judge finds you violated the terms and conditions of your probation, she can revoke your probation and give you any sentence she could have originally given you, including putting you on probation again. Or she can sentence you up to the maximum prison term allowed for the crime for which you were originally found guilty.

    You can appeal the judge's decision to revoke your probation, usually to the next highest court in your state. You can also apply for bail pending your appeal hearing. But if the judge denies bail, it's an uphill battle to get the court overruled.

    There shouldn't be an automatic increase in the amount of bail. However, it's common for judges to consider probation violators to be at higher risk for flight and increase the amount of bail during the revocation appeal process.

    Return to index . . .
    • Employment Law to Intellectual Property: Every Legal Issue. One Legal Source. Lawyers.com

    promissory estoppel

    an estoppel that prevents a promisor from denying the existence of a promise when the promisee reasonably and foreseeably relies on the promise and to his or her loss acts or fails to act and suffers an injustice that can only be avoided by enforcement of the promise

    TOYS; Bratz falls to its rival in court; Barbie maker Mattel may be on verge of a large damage award.

    In the battle of the doll makers, the house that Barbie built won a sweeping court victory Thursday, accessories and all.

    Suit could alter sport's landscape; Hamburg Masters defending its turf in antitrust dispute with ATP

    Just two weeks after one of the most memorable finals in Wimbledon history, men's tennis faces a $76.

    Missouri executions ruled constitutional

    A federal judge has tossed a lawsuit challenging Missouri's lethal injection method, ruling the state's protocol for executions is constitutional.

    More Legal News


    Terms & Conditions   Privacy   Copyright © 2008 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.