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Possible to get probation for first time assault charge?

Louisville, KY |

My friend had Pretrial yesterday but didn't get to go to court because there was a trial going on from Monday so his Pretrial got laid over til March 28. On March 28th, he will have exactly 6 months of time in. Is it possible for him to get probation with time served? If not, when would he likely be able to go up for parole?

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Attorney answers 2

Posted

Assault In the First Degree is a serious felony in this state:

§ 508.010. Assault in the first degree.

Kentucky Statutes

Title 50. KENTUCKY PENAL CODE

Chapter 508. ASSAULT AND RELATED OFFENSES

Current through 2010 Extraordinary Session

§ 508.010. Assault in the first degree

(1) A person is guilty of assault in the first degree when:

(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

(2) Assault in the first degree is a Class B felony.

History. Effective: January 1, 1975
Created 1974 Ky. Acts ch. 406, §65 , effective January 1, 1975

A Class B felony carries 10-20 years, a fine up to $10,000.00, plus court costs of about $150.00 upon conviction.

Depending on the facts of the case (fist fight, use of a gun or knife or other dangerous weapon, a beer bottle, etc.) and the extent of the injury to the "victim" ( broken nose, teeth lost, broken bone, gunshot wound, medical bills, loss of limb, etc.), each assault case is different. The defendabt's prior criminal record, was he on probation or parole at the time, etc. are all factors considered in a plea negotiation or decision to go to trial by jury.

Some degrees of Assault can be probated; some will carry time in the pen at 20%, 50% or 85% to serve of the term of years sentenced. Any time to serve will get a credit for all the jail time served in pretrial detention awaiting trial.

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

Frank Mascagni III

Frank Mascagni III

Posted

Another statute to consider is the so-called violent offender statute: Welcome, kybaruser@kybar.com PrintEmailFolderDownloadDocumentArchive (7)SuperCode (0) Browse TOC Searching, please wait. Open/Close Open/close Aa Notes ADD NOTE SHOW NOTES HIDE NOTES § 439.3401. Parole for violent offenders - Applicability of section to victim of domestic violence or abuse - Time of offense. Kentucky Statutes Title 40. CRIMES AND PUNISHMENTS Chapter 439. PROBATION AND PAROLE Current through 2010 Extraordinary Session § 439.3401. Parole for violent offenders - Applicability of section to victim of domestic violence or abuse - Time of offense (1) As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of: (a) A capital offense; (b) A Class A felony; (c) A Class B felony involving the death of the victim or serious physical injury to a victim; (d) The commission or attempted commission of a felony sexual offense described in KRS Chapter 510; (e) Use of a minor in a sexual performance as described in KRS 531.310 ; (f) Promoting a sexual performance by a minor as described in KRS 531.320 ; (g) Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a) ; (h) Human trafficking under KRS 529.100 involving commercial sexual activity where the victim is a minor; (i) Criminal abuse in the first degree as described in KRS 508.100 ; (j) Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060 ; (k) Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040 ; or (l) Robbery in the first degree. The court shall designate in its judgment if the victim suffered death or serious physical injury. (2) A violent offender who has been convicted of a capital offense and who has received a life sentence (and has not been sentenced to twenty-five (25) years without parole or imprisonment for life without benefit of probation or parole), or a Class A felony and receives a life sentence, or to death and his sentence is commuted to a life sentence shall not be released on probation or parole until he has served at least twenty (20) years in the penitentiary. Violent offenders may have a greater minimum parole eligibility date than other offenders who receive longer sentences, including a sentence of life imprisonment. (3) A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony who is a violent offender shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed. (4) A violent offender may not be awarded any credit on his sentence authorized by KRS 197.045(1),except the educational credit. A violent offender may, at the discretion of the commissioner, receive credit on his sentence authorized by KRS 197.045(3). In no event shall a violent offender be given credit on his sentence if the credit reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence. (5) This section shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious physical injury to the victim. The provisions of this subsection shall not extend to rape in the first degree or sodomy in the first degree by the defendant. (6) This section shall apply only to those persons who commit offenses after July 15, 1998. (7) For offenses committed prior to July 15, 1998, the version of this statute in effect immediately prior to that date shall continue to apply. (8) The provisions of subsection (1) of this section extending the definition of "violent offender" to persons convicted of or pleading guilty to robbery in the first degree shall app

Asker

Posted

Thank you !

Asker

Posted

Hes never been on Probation & they offered him 12 years at 20% via a letter and he hasnt accepted it yet. Do you think they will go down on the offer?

Frank Mascagni III

Frank Mascagni III

Posted

You need to speak to his defense attorney as to the practice of the prosecutor in the plea barganing process.

Asker

Posted

Ok.

Asker

Posted

Let me ask you something. If he was attacked first in the process of a drug deal and the guy wouldnt let him go and he had no other choice than to shoot him in the leg then isnt that considered self defense? He was left in an apartment with two guys who both had guns. His friend ran out on him.

Frank Mascagni III

Frank Mascagni III

Posted

A citizen has a right to protect himself: § 503.050. Use of physical force in self-protection - Admissibility of evidence of prior acts of domestic violence and abuse. -------------------------------------------------------------------------------- Archive Kentucky Statutes Title 50. KENTUCKY PENAL CODE Chapter 503. GENERAL PRINCIPLES OF JUSTIFICATION Current through Chapter 106, Regular Session 2011 § 503.050. Use of physical force in self-protection - Admissibility of evidence of prior acts of domestic violence and abuse (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person. (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055. (3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section. (4) A person does not have a duty to retreat prior to the use of deadly physical force. History. Effective: July 12, 2006 Amended 2006 Ky. Acts ch. 192, §3 , effective July 12, 2006. -- Amended 1992 Ky. Acts ch. 173, §2 , effective July 14, 1992. -- Created 1974 Ky. Acts ch. 406, §30 , effective January 1, 1975.

Frank Mascagni III

Frank Mascagni III

Posted

There is another statute that went into effect in 2006 regarding self defense: § 503.055. Use of defensive force regarding dwelling, residence, or occupied vehicle - Exceptions. -------------------------------------------------------------------------------- Archive Kentucky Statutes Title 50. KENTUCKY PENAL CODE Chapter 503. GENERAL PRINCIPLES OF JUSTIFICATION Current through Chapter 106, Regular Session 2011 § 503.055. Use of defensive force regarding dwelling, residence, or occupied vehicle - Exceptions (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if: (a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and (b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (2) The presumption set forth in subsection (1) of this section does not apply if: (a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; (b) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used; (c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or (d) The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010,who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer. (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force. (4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. History. Effective: July 12, 2006 Created 2006 Ky. Acts ch. 192, §2 , effective July 12, 2006.

Posted

You didn't say which degree of assault that your friend has been charged with, only that is was his first charge. There are misdemeanor assaults (Assault in the 4th Degree) and felony assaults. The felony assaults include assaulting a police or corrections officer (Assault in the 3rd degree) and then First Degree and Second Degree assault, which depend on the seriousness of the injury, whether a weapon was used, etc.

Assuming that that the prosecuting witness was not seriously injured and that your friend has little to no criminal history (especially priors involving domestic violence), the prosecution will likely offer him probation. He may have to jump through some hoops with his probation officer by attending domestic violence classes, anger management classes, and getting drug / alcohol assistance.

I hope this information is helpful.
Thanks for your question,
Melanie

This communication does not create an attorney-client relationship and information provided in this forum is not confidential. All answers are for informational purposes only. Every case is different and involves a different set of facts. This forum cannot replace competent legal advice by a licensed attorney. I will be happy to provide further assistance. I can be reached at (502)694-0529. Thank you.

Asker

Posted

His charge is Complicity to Assault 1st degree. What happen was it was pretty much a drug deal gone bad. Of course, that part alone is bad if you ask me. The guy attacked him first and he was left alone in an apartment with 2 guys who both had guns. The guy who attacked him first wouldn't let go and my friend couldn't get away so he shot him in the leg. The guy is fine, not injured or anything and is also facing drug possesion charges at this time as well. My friend turned himself in. His public defender told him he is going to try and get him probation by Derby and if not probation then he will definitly get him shock probation. What exactly is Shock Probation? I am hoping that with him barely having anything on him that he can get probation. He has no domestic violence charges on his record. He is attending AA Meetings in jail at this moment. Thank you so much for your reply. Your information was very helpful.

Melanie C Schneider

Melanie C Schneider

Posted

You're very welcome. I'm glad the information was helpful. To answer your question, shock probation is where you go to prison and then get probation later. The idea is that the prison experience is so bad that it "shocks" you into learning the error of your ways. The motion for shock has to be filed within 180 days of sentencing. It's good that your friend is attending AA meetings at the jail, since the judge makes the ultimate decision about whether he gets probation now or gets shock probation later. It can also be helpful to have friends and family write letters to the judge (give to the attorney first), show up in court, and possibly speak on his behalf. It sounds like a decent case, based on the limited facts that I have. The "victim" is not very sympathetic, since he was also involved in the drug deal. Plus, there's a potential self defense issue. My advice is for your friend to get a copy of the discovery (all the evidence against him that's turned over by the Commonwealth) and go over it with attorney at the PD's office. He needs to know that a guilty plea will make him a convicted felon for the rest of his life, needs to know what the jury will hear if he goes to trial, the ultimate penalty range if he loses at trial, and the offer from the prosecutor, etc. He needs to be able to make informed decisions about his future. Thanks for your question, Melanie.

Asker

Posted

He got his discovery & listened to the CD. There was two other guys who was with him. One was the driver, and the other was an 18yr boy. The 18 year old went in with him but ran out once the altercation broke out. My friend said the discovery says the victim grabbed him first. Also, when you say write letter, what do you mean? When should we write them and should it just list reasons why he should be granted shock?

Asker

Posted

The only evidence they have is that he did turn himself in. The guy he shot & his girlfriend are trying to say he robbed them and theres no way because they got into the altercation as soon as my friend got there. The guy & his girlfriend have switched up their stories. In their original statement, they said one thing and then on the stand they said something completely different. I don't know whether or not the judge/jury look at that. They did offer my friend via mail 12 years at 20%. I don't know if he is taking it. What does 12 years at 20% mean?

Asker

Posted

His other charges are Complicity to Robbery, Complicity to Burglary and Complicity to wanton endangerment. The other two guys involved have the same charges as well.

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