If a “Plea Agreement” (also known as a Plea Bargain) has been worked out between the defense attorney and the prosecutor for a lesser included offense, then a Change of Plea will occur. Normally this is set for a specific date. After a Plea Agreement has been entered into, the judge can decide whether he is going to “defer” acceptance of the plea until the “Sentencing” date, or accept the Plea Agreement (Plea Bargain) on the spot. The problem with accepting it on the spot is that the judge can then take you into custody right then and there. Normally we will “Defer Acceptance” of the plea until a “Presentence Report” is written up, in order to allow the judge to leave you out of custody for the next month or so. (See definition below).
If a Plea Agreement is not reached during the Pretrial Conference phases, a Defendant can then have his case set for trial either a “Jury Trial” or “Bench Trial” (see Jury or Bench Trial). A Jury Trial would be comprised of jurors from the community. A Bench Trial would involve doing the trial directly to the judge.
Immediately after a Change of Plea or Guilty Verdict after trial, a Defendant is to report to the Probation Department (within the same building) to meet with a “Presentence Report” writer. The Presentence Report writer will meet with you in jail if you are taken into custody after a Change of Plea or verdict of guilt after a trial. The Presentence Report writer will interview you and decide what to recommend as your “Sentence” to a judge. Of course, if you have specific terms listed in your Plea Agreement, the probation officer can only recommend that the judge does accept the plea, or reject the plea and either give you a lighter sentence, or a harsher sentence. It is always important to treat the Presentence Report writer with respect. Always discuss with your attorney what needs to be said prior to entering into that meeting.
“Sentencing” will usually occur 30 days after the “Change of Plea” or after a Guilty Verdict at trial. At this time, the “Presentence Report” will already have been prepared, and we will review that report with you. (See definition above). If it appears that the report is recommending a harsh sentence, and the prosecutor is also recommending a harsh sentence, then we will move for a “Mitigation Hearing” to be held roughly 30 days after that point. We will sit down with you and prepare a “Sentencing Memorandum” which will attempt to sway the judge to the lightest possible sentence within the Plea Agreement ranges or Sentencing ranges if you were found guilty after trial. Again, if you have a specified amount of time in your Plea Agreement (Plea Bargain), then this probably will not be necessary and the sentencing will proceed on the first Sentencing date without a Mitigation Hearing. Once again, it is important to have a good defense attorney who knows what he is doing who can read the judge (i.e., DM Cantor, P.C.) to determine whether or not this Mitigation Hearing will be necessary.
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