Sentencing Frequently Asked Questions

Will prior convictions of a defendant be a factor in sentencing?

Yes. Most states have "enhancement" laws that allow for additional punishment to be added. For instance, a prior conviction for assault might increase the minimum 5-year term for the present assault conviction another 3 years.

The court will allow evidence on other factors relevant to harsher sentencing, including a defendant's criminal record as a whole, gang memberships and other "bad acts." However, mitigating evidence can also be introduced to show that a defendant is not completely without moral judgment or principles. Some mitigating circumstances include:

  • intoxication at the time of the crime;
  • a low IQ or presence of a mental disability; and
  • traumatic childhood experiences.

Like victim impact statements, allowing evidence of mitigating circumstances is completely at the discretion of the trial judge.

The judge announced my nephew's punishment, but now the written judgment has added additional time in prison. Which punishment does he receive?

The oral pronouncement in court, when your nephew was present, controls over any later written judgment. Additionally, changing the sentence in a subsequent document violates his constitutional rights to due process.

Example: When a defendant has been convicted of two crimes, a judge may impose concurrent (the timed served counts toward both convictions) or consecutive (each conviction requires a term of imprisonment, one after the other) sentences. If concurrent sentences are pronounced orally by the court to the defendant, the judge cannot later change the sentence to consecutive terms of imprisonment, and vice versa.

After I have made my victim impact statement, can I be cross-examined?

Yes. Impact statements are testimony, under oath, and are subject to cross-examination just like trial testimony.

What happens if I violate the terms of my probation?

Your probation will be revoked. You will be arrested and placed in jail until such time as the judge determines, in a revocation hearing, whether you have violated the conditions of your probation. The judge will then sentence you as if probation had never been granted.

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