August 11, 2012
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How Are Sentencing Guidelines Used In Criminal Cases In Virginia?
After someone is convicted of a felony in Virginia, whether it be after entering a guilty plea or a trial, the Circuit Court judge will order a presentence report. A presentence report is prepared by a probation officer and includes various background, family, and employment information about the defendant. One of the items included in the presentence report is a calculation of sentencing guidelines.
Sentencing guidelines give a point value to several factors, including the particular charge, the defendant’s prior criminal record, and some aggravating factors such as use of a weapon and victim injury. After calculating the various factors, that score is compared to a sentencing table that has been established by the Virginia General Assembly to set a recommended sentencing range. The purported purpose of this range is to ensure that defendants convicted of similar crimes who are in similar situations receive similar treatment from the various judges and courts throughout the Commonwealth.
When judges impose sentences, they will generally suspend a portion of that sentence. They may impose a five year prison sentence and suspend four years, leaving one year to serve – the active sentence. The only legal restriction on the court for sentencing is the maximum sentence set by the statute. The sentencing guidelines recommend to the judge what that active sentence should be. While departure from the recommendation is not uncommon, judges do sentence within the guideline range in most cases. It is important to remember that sentencing guidelines are advisory only, and a sentencing judge may impose a sentence within those guidelines or depart from them either downward in favor of the defendant, or upward in favor of the Commonwealth.
When preparing for a sentencing hearing, a defense attorney should evaluate not only the presentence report and sentencing guidelines, but also things not included in that report, such as other sufferings of the defendant due to the offense, positive contributions by the defendant to the community, and their involvement in the community through church, business or civic organizations.
A sentencing hearing is the opportunity for a criminal attorney to show the defendant in a more positive light that just that of a convicted felon. If you have been charged with a criminal offense in Hampton Roads, VA, you should contact an experienced Virginia Beach defense lawyer to help you.
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