Sentencing is done by the judge either at the time you plead no contest or when you are found guilty by a jury, sometimes a judge will delay sentencing to give the defense a chance to built a sentencing argument. Most times a judge will sentence immediately after guilt is determined, and he will hear arguments from the government and defense before handing down a sentence.
A Misdemeanor is punishable by a maximum of 364 days in County Jail, or 12 months probation, or a combination of jail and probation which is called a split sentence. If you are charged with more than one misdemeanor the sentence can be run concurrently or consecutively. Concurrent means the sentences run at the same time. For instance, you can be charged with both possession of marijuanna and possession of paraphernalia, each punishable by one year in the county jail. If both charges are run concurrently you will do only a max of one year in jail. If they are run consecutively you will do up to 1 year in jail for the first charge, at the end of that sentence you will then begin your next sentence of up to 1 year in jail. So it is possible to spend two or more years in the county jail on separate misdemeanor charges.
A Felony is punishable depending on various factors such as the degree, scoresheet, and dangerousness to the community. A score sheet determines the amount of points for your current charges, as well as previous charges. If you have a score below 22 points a non-prison sentence is required unless a judge makes written findings of dangerousness to the community (extremely rare). If your score is over 22 points up to 44 points, the judge has discretion to send you to prison or give you a non-prison sentence. If your score is over 44 points you will be in the mandatory prison range, the score sheet lists various ways a judge MAY, at his discretion, go below the mandatory prison sentence. A 3rd degree felony is punishable by a maximum of 5 years in prison unless your scoresheet points indicate a minimum sentence of more than 60 months. A 2nd degree felony is punishable by a maximum of 15 years in prison, again, unless your scoresheet points indicate a minimum sentence of more than 15 years in prison. A 1st degree felony is punishable by a maximum of 30 years in prison unless your scoresheet indicates more than 30 years.
MOTION TO DISMISS
Many clients ask, “Why can’t we just file a Motion to Dismiss”?
In order to file a motion to dismiss we first have to acknowledge that we are not disputing any facts stated in your discovery (evidence such as a police report). If you read discovery and you are disputing anything in there, you are now disputing facts. When there is a factual dispute, a jury or judge must resolve those facts. In order for a Judge to grant a motion to dismiss there must be one or more elements of a crime not indicated in the discovery or alleged in an information (charging document).
For instance the elements of Theft are: 1. the taking of another person’s property; 2. without their consent; 3. with the intent to permanently or temporarily deprive the owner of that property.
Now if you took an item from someone without their consent (element 2), and intended not to return that property (element 3), there would be a valid motion to dismiss because the discovery did not state that the item taken belonged to the other person. Your defense in a motion to dismiss could be, “That item belonged to me and here is my receipt”
MOTION TO SUPPRESS
Another popular question is, “Why can’t you just file a Motion to Suppress”?
A Motion to Suppress involves a 4th amendment search and seizure issue. When arguing a motion to suppress we are asking the judge to not allow certain evidence at trial, such as drugs found under the seat of a car. We look for illegal stops, or illegal seizures by the police, and as a result of the bad stop or seizure the evidence found is considered “fruit of the poisonous tree,” and must be excluded. This is a very complicated area of the law and requires specialized experience to argue this type of motion. Lets look at profiling, if the police pulled you over because you are a white person driving through a predominantly black neighborhood or vice versa, while this may be suspicious it is not a valid reason to stop a car and search the car and its occupants. If you were profiled in this situation a motion to suppress would be the proper motion to have the evidence excluded. However, profiling is legal if coupled with a reasonable suspicion that a traffic violation occurred. In other words, profiling is legal if the persons profiled were also speeding.
WHAT DOES ALL THIS MEAN?
Well, before we talk about defenses and trials, I first need to explain to you the possible outcomes at sentencing, so you can make an informed decision about accepting a plea vs. risking jail or prison if you continue to defend your case. After I discuss possible sentencing outcomes with you, I then look to see if there are any motions to be filed that could gut the government’s case against you. I analyze the likelihood of success if that motion is argued. If you have a strong motion and a solid trial defense I have a much better chance of getting a case dropped. However, if you have a weak motion and difficult trial defense, the government is much less likely to drop a case. There are many factors to consider in evaluating a case, every case and defendant are different and can not be compared to any other defendant or case. As you can see, it is imperative to hire a qualified defense attorney to analyze your case. Nathan Dougherty has handled thousands of cases, argued many motions, and argued many trials to an acquittal.