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First Offense, No Record – Am I Going to Jail?


going to jailWhile it is true that your past criminal record plays a role in sentencing (if convicted), a first-time offender could still receive the maximum penalty for a serious crime. Therefore, you should never assume that because you are a first-time offender, you will avoid jail time or have a lesser sentence imposed. Instead, you should speak with a criminal defense attorney.

Only a qualified attorney can work with the prosecution to help determine if you will go to jail or avoid a jail sentence altogether.

The Factors That Play a Role in Sentencing in Albuquerque Criminal Courts

While the Eighth Amendment to the U.S. Constitution protects you from excessive bail, fines, and unreasonable punishments, the judges often have discretion in imposing sentences. State and federal court sentencing procedures are heavily regulated to protect a person from an Eighth Amendment violations. But from there, judges rely on their experience and the circumstances of the case to determine the proper sentence for your crime.

Specific factors contribute to sentencing and the charges you face in the first place.

Do not rely solely on your criminal history (or lack thereof) as a gauge of what penalties you might face. Instead, consider all the factors:

What the Statute Says: Mandatory Minimums and Uniformity

The biggest determining factors are the crime itself and how the statute tells the judge to address that crime. Your penalty is directly tied to the crime you are convicted of committing. There is no escaping that penalty unless the judge feels there are extravagant mitigating circumstances.

If you are in a jury trial, the jury may be instructed to find you guilty of a higher or lesser criminal sentence. Then, based on the sentence selected, you will then receive your punishment in accordance with the statute.

Realize a statute is a guideline for judges. The purpose of punishments listed by crimes is to provide the judge with a starting point. Mitigating factors can reduce the sentence suggested while aggravating circumstances can greatly increase the amount. However, most statutes have a maximum penalty regarding imprisonment years and fines. For example, the statute may state that a maximum fine of $700 can be imposed, but the judge could require you to pay less than the $700 maximum or force you to pay that maximum, depending on other factors assessed.

The Special Exception of Mandatory Minimum Sentences

Mandatory minimum sentences are imposed for serious crimes, and there is no negotiating a lesser sentence – even if you offer evidence or a plea. In these cases, the judge must assign the penalty listed in the statute.

Not all crimes have mandatory minimum sentences. Instead, only a select few have mandatory minimum prison sentences, and these are often severe crimes.

For example, a capital felony often carries a mandatory minimum of execution or life imprisonment without the possibility of parole.

Other crimes that carry mandatory minimum sentences include:

  • Employing minors for sexual practices
  • Home invasions
  • Kidnapping with a firearm
  • Felony murder
  • Aggravated sexual assault of a minor
  • Sexual assault in the first degree
  • Assaulting a pregnant woman that results in termination

The judge does not use discretion when mandatory minimums apply. Therefore, if the court finds you guilty of employing a minor for sexual acts, you will face a mandatory minimum of 10 years but no more than 25 years. In this case, the judge can assign a prison sentence between 10 and 25 years but no less than 10 to comply with the mandatory minimum.

Aggravating and Mitigating Circumstances

Aggravating and mitigating circumstances apply to most sentences. If your case has a mandatory minimum, then the judge may consider the aggravating and mitigating circumstances to determine where you fall between that mandatory minimum and maximum range.

Some examples of aggravating circumstances include:

  • Past criminal history
  • The violence and severity of the crime
  • Who was hurt, how the crime was committed, and whether you committed the crime with the intention of causing harm
  • Whether you were particularly cruel in the commission of the crime

Examples of mitigating circumstances, which help your case, include:

  • If you are a first-time offender
  • Your standing in the community
  • Whether you committed the crime in a state of duress or personal stress
  • If you were an accessory and not the primary offender
  • If you are genuinely remorseful for your acts

Quality of Representation

The quality of representation you have plays a role as well. An attorney that presents your case well, including emphasis on mitigating circumstances during your sentencing hearing, can make a difference in the sentence you receive.

For lesser crimes where a jail sentence is not always necessary, you want an attorney that can argue as to why you should receive probation, treatment, or alternatives to jail and help convince the judge that you will rehabilitate without jail or prison time.

Your Testimony at Sentencing

You have the right to testify at your sentencing hearing, and you should. What you say to the judge will play a role in determining if they feel you are remorseful, your ties to the community, and whether you would rehabilitate using alternative sentences or jail.

Realize that the state also can present their argument to the court during sentencing, and victims can speak against you during the hearing as well.

State Oversight on Sentencing

New Mexico governs sentencing for state courts, and the sentencing commission oversees current statutes, minimum and mandatory sentences, and adjusts these as necessary. They provide a written report to all criminal court judges indicating changes to the statute and the average reduction in sentences as defined in Section 33-2-34 NMSA 1978.

Hiring a Criminal Defense Attorney Is Best

If you have been arrested, your best way to avoid jail – even as a first-time offender – is to hire an attorney with experience in criminal defense.

An attorney from New Mexico Criminal Law Offices can help get the best possible outcome in your case, including a lesser sentence, probation, or no jail time at all.

To explore your options, speak with us today during a free case evaluation at 505-375-4763 or request more information online.