Criminal Law & Sentencing FAQs

In Massachusetts the difference between a misdemeanor and a felony comes from the potential sentence associated with a particular crime. A felony offense is punishable by a sentence in state prison, while a misdemeanor offense is not. The maximum penalty for a misdemeanor offense is a sentence of 2 ½ years in the house of correction. Even if the crime you are charged with is a misdemeanor, these are still serious offenses with the possibility of jail time and should not be taken lightly.

Generally speaking, the superior courts hear cases involving more serious charges. While the superior court has jurisdiction to hear any case brought in the Commonwealth, these courts will generally be reserved for prosecutions of more significant charges that carry harsher penalties. District courts on the other hand have limited jurisdiction. District courts cannot hear cases that carry only state prison sentences; a district court judge only has authority to sentence a defendant to a maximum sentence of 2 ½ years in the house of correction. Although any case may start in district court, cases involving more serious felonies with state prison penalties will ultimately need to be transferred to superior court by way of indictment.

Pretrial probation may be a very favorable disposition that your attorney can help you secure in your criminal case. Pretrial probation is an agreement between the prosecutor and the defendant that must be approved by the court. The agreement will require that the defendant be placed on probation for a period of time and may have to abide by certain conditions. If the defendant successfully completes probation then the case will be dismissed. If however the defendant does not successfully complete probation the case may be brought back before the court and scheduled for trial. Pretrial probation may be available before or after arraignment on a criminal charge.

A continuance without a finding, commonly referred to as a CWOF, is similar to pre-trial probation but not as favorable to the defendant. A CWOF requires that the defendant make an admission to sufficient facts but is not a guilty plea. By making an admission the defendant is giving up the right to a trial on the case but is not pleading guilty. Like with pretrial probation, a CWOF requires that the defendant be placed on probation for a period of time, usually with certain conditions. Upon the successful completion of this probation the case will be dismissed. If the defendant does not successfully complete probation the court can impose a guilty finding and sentence the defendant up to the maximum sentence allowed by law. A CWOF is a very good disposition in a criminal case because it allows you to resolve your case without a conviction on your record.

If you choose to take your case to trial a trial can take a couple of different forms. In Massachusetts you can choose to have a trial by a judge, often referred to as a bench trial, or a trial by a jury. If you choose to have a bench trial a judge will hear your case, review all of the evidence and determine whether or not the Commonwealth has proved the case against you beyond a reasonable doubt. If you choose to have a jury trial a judge will preside over that trial but will only make rulings of law related to the admissibility of evidence and other legal issues, the judge will instruct the jury on the law but ultimately the jury will determine whether the Commonwealth has proved its case beyond a reasonable doubt. A jury trial in District Court will consist of six jurors, in Superior Court a jury trial will be comprised of 12 jurors. All jury verdicts in criminal cases must be unanimous.

Whether you choose to have a jury trial or a bench trial, if you are convicted after trial the judge will impose the sentence. Following a conviction after trial the judge will hear recommendations from the prosecutor and defense counsel as to what the sentence should be. A judge can impose a wide variety of sentence following a trial, including probation, a suspended sentence, a split sentence or a sentence of incarceration up to the maximum as allowed by law.

If a judge imposes a suspended sentence after trial this means that the judge will sentence you to a period of incarceration but will not order you to serve that sentence immediately, rather the judge will place you on probation and give you an opportunity to successfully complete that probation. If you are successful on probation you will not have to serve your sentence; however, if you violate your probation the judge will impose the sentence. For instance, following a conviction, the judge may impose a sentence of 1 year and suspend that sentence for a period of 2 years. This means that the defendant would be placed on probation for 2 years; if successful on probation the defendant would never serve the 1-year sentence. However, if the defendant violates probation the 1-year sentence could be imposed by the court.

Probation can take a number of different forms, for instance as discussed above there a defendant may be placed on pretrial probation, probation as the result of a CWOF, or probation following a conviction or guilty plea. There are two primary types of probation: administrative probation and supervised probation. If placed on administrative probation this usually means that there are no specific conditions associated with your probation and that you will report to probation administratively, usually by mail. If placed on supervised probation this usually means that there are specific conditions involved with your probation such as drug testing, counseling or the completion of a program. You will be assigned a probation officer whom you will have to report to and who will monitor your compliance with conditions.

What happens if you violate your probation depends on a number or different factors, including what type of probation you are on –whether it is pretrial probation, probation associated with a CWOF, probation following a conviction or probation associated with a suspended sentence. What happens after a probation violation will also depend on what type of violation it was whether a technical violation, failure to abide by conditions or picking up new criminal charges. If you receive notice of a probation violation you have certain rights and it is essential to consult with an experienced attorney to help you protect these rights and secure the best possible outcome following this violation.