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Massachusetts Sentencing Options

The criminal justice system can be a scary and overwhelming place. When faced with a criminal charge, people often have many questions and concerns. One area that is particularly confusing is sentencing. There are many different types of potential resolutions to a case. Some potential outcomes require an admission of guilt and result in a criminal conviction, while others may not. Some involve jail time, while others involve probation. Any conviction, even for a relatively minor offense will become part of your criminal record. Moreover, a criminal conviction can hurt you when you are looking for a job or applying to rent a house or apartment, or applying for a professional license. A conviction can also impact your ability to receive federal financial aid, may impact your ability to lawfully operate a motor vehicle, and may impact your immigration status if you are not a citizen.

If you or a loved one is facing criminal charges, you will need a defense attorney who can determine whether you have any grounds for a dismissal, who is aware of all of the possible options when it comes to resolving your case, and who can represent you at trial. Attorney Cappetta is an experienced attorney who is well versed in the law. He has represented numerous clients at trial, and has also successfully resolved a number of cases short of trial. If you choose to pursue the latter option, Attorney Cappetta is committed to getting you the best outcome possible, and making sure that you understand all of the various options and the consequences of those options.

The following is a brief definition of possible resolutions should you decide to resolve your case short of trial:

Non-incarceration dispositions

Pre-Trial Probation: Pursuant to G. L. c. 276, § 87, the court may place a defendant on pre-trial probation. To be placed on pre-trial probation, the defendant must agree to abide by certain conditions of release for a specified period of time. The period of time can range from weeks to years. Conditions of release may include staying away from witnesses in the case, paying restitution, attending substance abuse counseling, drug and alcohol testing, attending school or maintaining employment, or some combination thereof. If a defendant successfully makes it through the specified period of time without violating any of the conditions, the judge will dismiss the case. Placement on pre-trial probation does not involve any admission of wrong-doing or guilt, and if a defendant successfully makes it through the probationary period, there is no conviction on the defendant’s record. One of the most important benefits of pre-trial probation is that a violation of any conditions simply means that the case will be placed back on the trial list and the defendant can still exercise his right to go to trial. Unfortunately, however, a court cannot impose pre-trial probation, without the Commonwealth’s consent. Further, the Commonwealth is only likely to recommend pre-trial probation if the alleged offense is not particularly serious, and if the defendant does not have a criminal history.

Continuance Without a Finding: The court can impose a continuance without a finding, commonly referred to as a CWOF. A CWOF is a disposition in which the defendant admits that the prosecution has “sufficient facts” to prove his or her guilt, but is not technically pleading guilty. The court then continues the case without a finding of guilt and places the defendant on probation for a specified period of time. Like pre-trial probation, the court may impose conditions of probation, which would be similar to those referenced above. If a defendant successfully makes it through the specified period of probation without violating any of the conditions, he is entitled to a dismissal of the case and there will be no conviction on his record. Unlike pre-trial probation, however, if a defendant violates the conditions of release, he does not have a right to proceed to trial. Rather, he will face a probation violation hearing during which the court may revoke the continuance without a finding and impose a finding of guilt. If the court imposes a finding of guilt, the defendant would have a criminal conviction on his record. In addition to imposing a finding of guilt, the court may also impose additional penalties, including additional conditions of probation, an extension of probation, or jail time. While the Commonwealth does not have to agree to a CWOF, the court is generally only willing to impose such a disposition if the offense is not particularly serious, the defendant does not have a lengthy record, and/or there are some mitigating circumstances that warrant the avoidance of a conviction.

Guilty Filed: The court may impose a “guilty filed.” A guilty filed requires an admission of guilt, and results in a conviction on the defendant’s record. Following the admission of guilt, the court refrains from imposing a sentence for a specified period of time. For example, the court may place a defendant’s case “on file” for a year. Unlike pre-trial probation or a continuance without a finding, there are no specific conditions imposed during this time period. Although the court, the Commonwealth, or the defendant may ask that the case be brought forward for imposition of a sentence prior to the end date of the specified time period, such action is not generally taken as long as the defendant is not charged with any new offenses during the filing period.

Probation: The court may impose a probationary sentence after an admission of guilt. Probation allows a defendant to remain in the community subject to certain conditions of probation, such as those listed above, and under the supervision of the probation department for a specified period of time. Again, the specified time period can be for a period of weeks to years. If the defendant violates any of the conditions of probation, or is charged with any new cases, he may face a probation violation hearing. If the defendant is found in violation following the hearing, the court may revoke the probation and sentence the defendant to jail time. Alternatively, the court may modify the terms and conditions of the probation, or extend the probationary period. What the court does after finding a violation of probation generally depends on the nature and seriousness of the violation.

Straight Probation: Straight probation is a specific type of probation that is imposed after an admission of guilt. If the court finds that the defendant violated his probation, the judge may impose any sentence permitted by the statute that governs the underlying offense, including re-probation or jail time. If a defendant is found in violation of his straight probation and the judge decides that he should be sentenced to jail time, the amount of jail time can range from as little as one day, all the way up to the maximum amount of jail time allowed under the statute.

Suspended Sentence: A suspended sentence is a specific type of probation that is imposed after an admission of guilt. With a suspended sentence, the judge orders the defendant to serve a specific sentence in jail if he violates any terms of probation. If a defendant with a suspended sentence violates probation, it will not automatically trigger jail time, but if the judge determines that some jail time is warranted, then the judge has no choice but to sentence the defendant to the amount of jail time specified in the suspended sentence. Usually, a minor violation of probation, such as a missed court payment or showing up late to an appointment with a probation officer will not result in the imposition of the suspended sentence, however, any significant violation, such as a new criminal charge, will likely result in the suspended sentence being imposed.

Dispositions Involving Incarceration

Sentences involving periods of incarceration may include sentences expressed in days, months, or years. District courts have jurisdiction over misdemeanors, felonies punishable in state prison for up to five years, and felonies where the potential penalty includes the possibility of a house of correction sentence. The maximum sentence that can be imposed by a district court is 2.5 years in the house of correction.

Straight Time: A sentence involving a period of incarceration, with no probationary period.

Split Sentence: Split sentences are sentences that include both a period of incarceration and a suspended sentence with a term of probation. The defendant is sentenced to a certain period of jail time, and must serve some portion of that sentence. Upon completion of the incarcerated portion of the sentence, the defendant is released and place on probation, with the remainder of the incarcerated portion of the sentence suspended for a specified period of time. If the defendant violates the terms of probation, he or she is subject to the imposition of the suspended sentence. For example, the judge can sentence the defendant to 2 years in jail, 6 months to serve, balance suspended for 2 years. That would mean that the defendant would have to serve 6 months of the 2 year sentence. Once the defendant has completed the 6 month portion sentence, he would be on probation for two years, with the remainder of the sentence (18 months), suspended for the two year probationary period.

Concurrent Sentence: A concurrent sentence is a sentence that runs while an existing sentence is being served. It may be imposed at the same time as other sentences, or after the defendant has already started serving another sentence.

Consecutive Sentence: Consecutive sentences are sentences that are specified to start upon termination of a prior sentence or sentences.

Mandatory Minimum Sentences: In Massachusetts, certain offenses carry statutory “minimum mandatory sentences.” That means that if convicted, the court cannot sentence the defendant to anything less than the mandatory sentenced specified under the statute.