Sentencing is the hearing that takes place after you are convicted, whether by plea or at a trial, at which the judge declares your punishment.
Below are some common questions and answers regarding sentencing. If you have specific questions regarding the sentencing in your case, you should always feel free to consult your Blanchard Law attorney.
What is my sentence going to be?
Your sentence is going to depend on a number of factors, including the following:
- The seriousness of the offense for which you were convicted;
- Any sentencing agreement you made with the prosecutor or court;
- Your prior criminal history;
- The particular facts of the offense;
- The recommendations within your presentence investigation report;
- The rehabilitation measures you have taken since the offense;
- Family and community support available to you;
- Your acceptance of responsibility for the offense;
- The availability of deferrals or specialty courts;
- Payment of your fines and costs on the date of sentencing;
- In felony cases, your sentencing guidelines score;
- The court or judge in which you appear.
What can the judge do in a misdemeanor sentencing?
In misdemeanor cases, the judge has discretion to sentence you to incarceration from zero days up to the maximum amount of days permitted for the offense. The most common maximum penalties for misdemeanor cases are 93 days or 1 year. The judge can also impose a period of probation, fines, costs, and restitution.
The judge will often rely heavily on the recommendations that are made within a presentence investigation report, drafted by the court’s probation department. However, not all misdemeanor cases require that a presentence investigation report be prepared. If a presentence investigation report has been prepared in your case, you will have met with the probation agent following your plea.
For many first offenders, the judge will not impose jail and will sentence the defendant to probation. However, each case is different. You should discuss your specific facts with your lawyer.
What can the judge do in a felony sentencing?
In felony cases, each case includes a presentence investigation report prepared by the Michigan Department of Corrections. By the time you have reached sentencing, you will have filled out a packet of paperwork detailing your history, and you will have met with a probation agent to discuss the offense and your history.
The agent from the Michigan Department of Corrections will prepare a detailed report that discusses the police version of the incident, your version of the incident, detailed information regarding your history, make recommendations for incarceration and/or terms of probation, and will score your sentencing guidelines.
In Michigan, the sentencing guidelines are a set of numerical guidelines created by the legislature to give guidance to judges regarding what a defendant’s sentence should be for particular crimes under a particular set of circumstances. The sentencing guidelines take into account two categories of factors.
The first category is offense variables. These are particular factors set out by the legislature that they believed made an offense worthy of additional punishment. (e.g. using a weapon, higher number of victims, etc.) If those factors are present, you score the number of points assigned by the legislature for that factor.
The second category is prior record variables. These are particular factors regarding your prior criminal history that the legislature deemed worthy of additional punishment. (e.g. prior felonies, on probation or parole at the time of the offense, etc.) If those factors are present, you score the number of points assigned by the legislature for that factor.
The legislature created grids that include the offense variables and the prior record variables. Once a score is determined for each category, you find the place on the grid where those two scores meet, and the grid tells you what your sentencing range is in number of months. There are generally three types of sentences that are available on the grid.
First, there are the “intermediate sanction” cells. If you score within an intermediate sanction cell, the legislature is recommending that you be sentenced to incarceration in the county jail (12 months or less) and/or probation.
Second, there are the “straddle” cells. If you score within a straddle cell, the legislature is recommending that you either be sentenced to incarceration in the county jail and/or probation, OR you be sentenced to prison.
Third, there are “prison” cells. If you score within a prison cell, the legislature is recommending that you be sentenced to prison. If the judge sentences you to prison, they must give you what is called an indeterminate sentence. An indeterminate sentence doesn’t have a specific release date, but rather a range of time within which you can be released. (e.g. a sentence of 5 to 10 years)
With an indeterminate sentence, in nearly every case, the judge does not set the maximum end of the sentence. The maximum is set by statute. For example, if you are convicted of a 20-year felony, the maximum in the range will be 20 years. The judge does set the minimum end of the sentence, based on the numerous factors listed above, including the sentencing guidelines.
The sentencing guidelines, however, are not mandatory, and a judge can decide to disregard the sentencing guidelines if they enumerate factors that indicate that it is reasonable to do so and that the sentence is proportionate to others sentenced for the same type of offense. Most sentences on felony cases, however, are within the sentencing guidelines for that offense.
Am I going to go to jail on the day of sentencing?
In most cases, if you are sentenced to jail time, you will begin your sentence on the day of sentencing. Occasionally, the judge will allow you to report to jail on a later date, but that is relatively rare and tends to involve unique circumstances.
What are my fines and costs going to be?
In misdemeanor cases, fines and costs are generally in the range of $800-$1,500. There are a handful of minor misdemeanors that may result in lower fines and costs, and some that may result in higher fines and costs. Convictions on multiple counts will also result in higher fines and costs.
In felony cases, fines and costs can vary significantly based on the offense. The recommended fines and costs will generally be located within your presentence investigation report that you will be able to review with your lawyer prior to the sentencing date.
When are my fines and costs due?
Fines and costs are due on the date of sentencing. You should be prepared to pay your fines and costs in full on the date of sentencing.
What will be the terms of my probation?
The terms and conditions of your probation will vary by offense and by court. Most probation terms will include terms such as:
- Do not violate any criminal laws.
- Do not use or possess any alcohol or controlled substances.
- Submit to testing or searches for alcohol or controlled substances.
- Do not leave the state of Michigan without permission from your probation agent.
- Obtain and/or maintain your employment and verify that to probation.
The terms of your probation may also require you to complete classes, counseling, or community service.
Different offenses also have specific terms and conditions of probation tailored to specifically address that offense.
How long will my probation be?
In misdemeanor cases, the maximum period of probation is two years. For first-time offenders, a probation sentence of six months to one year is more common.
In felony cases, the maximum period of probation varies by offense. If a judge in a felony case sentences a defendant to probation, it tends to be for a lengthy term.
What can I do to prepare for sentencing?
There are some things that you can do to assist your lawyer with preparation for sentencing.
For example, your lawyer may request that you seek letters of support from friends, family, and community members that can be presented to the judge at sentencing, or prior to sentencing in a sentencing memorandum drafted by your attorney.
It is important that you take any rehabilitative measures recommended by your lawyer through the course of your case, and to continue those rehabilitative measures up until the date of sentencing. (e.g. AA attendance, counseling, etc.)
You may also want to discuss with your lawyer any measures that you can take to prepare for incarceration, if that is a possibility in your case. You may need to make arrangements with your employer or for your family.
What should I wear to sentencing?
It is important that you appear professional at sentencing. For men, you should wear a suit and tie, or at a minimum, dress slacks, collared shirt, and a tie. For women, dress slacks, a skirt, or a dress is appropriate. You should not wear jeans, low-cut shirts, short skirts, shorts, or flip-flops.
Men should also give thought to their facial hair and haircut. You should appear neat and clean. If you have facial hair, you should make sure that it is short and well-groomed. Women should also appear neat and clean, but should be careful not to wear overstated makeup. For everyone, tattoos should be covered to the extent possible.
Am I eligible for work release?
Work release eligibility is determined by the jail. Each jail has different rules for eligibility. It can depend on a number of factors, including:
- The offense of conviction;
- Prior criminal history;
- History of substance abuse;
- Location of your employer;
- Willingness of your employer to participate;
- Availability of transportation;
- Ability to pay the work release fees;
- Length of employment;
- Approval by the judge.
While the judge can approve work release for you, the jail makes the ultimate decision whether or not to grant you work release.
Can I do house arrest instead of jail time?
Some courts offer a house arrest program that can be utilized instead of jail. You are placed on an electronic tether that monitors your movements, and you are often required to stay only in your home, although some programs will permit you to go to work.
Even in courts that offer a house arrest program, getting house arrest instead of jail time is difficult. You need to be able to articulate specific reasons for wanting to do the house arrest program instead of jail time, that are not simply that you do not want to serve time in jail.
Some courts do not have a house arrest program available.
Can I do community service instead of jail time?
Most of the time, the answer is no. While a judge may order you to complete some community service, most of the time the judge does not do so instead of imposing jail time. (Although, if you fail to complete court-ordered community service, the judge is likely to put you in jail.) Some courts, however, will permit you to do community service or work crew in lieu of serving your jail time, in rare circumstances. This tends to be available for minor misdemeanors where there is lack of a prior criminal history.