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Is it procedural error to not count time served in jail awaiting sentence?

Reading, PA |

2005 i was incarcerated for a crime awaiting sentence for over 3 1/2 months. at a case status hearing i was released on unsecured bail "ROR", 2 months later came back for sentence and judge sentenced 3 years probation in a plea agreement. I shouldnt the time spent in jail count towards some sort of sentence involving parole with time served? berks county,PA

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Attorney answers 3

Posted

The sentence worked out with your attorney was for probation and did not take into account anytime spent in jail. Your attorney should have negotiated a time served sentence which would have placed you on parole with credit for time served. It is too late to go back in time to be resentenced. It is also possible that the parties took into account your time in by reducing the length of the probation.

Asker

Posted

I was wondering if I can appeal the leagality of the defender not bringing up the issue or judge not seeing that time spent in custody before accepting this plea. I was 22 and feel that I was somehow dupped into plea because of lack of knowledge in criminal justice system. I am still currently serving sentence

Robert C. Keller

Robert C. Keller

Posted

The only thing you can try now is to have an attorney file a motion seeking early termination of your probation.

Posted

I again agree with Mr. Keller's analysis. While it is common for judges (even if not proposed by plea agreement) to use up pretrial custody in a time served followed by parole, there is not any relief that would be due you for failure of the sentence to do so.

Posted

I'm not necessarily in agreement with my colleagues that your attorney should have gotten you a time served sentence. There is certainly a possibility that they should have but I've seen folks waive time served in order to remain in a county correctional facility rather than go to the state correctional system. I've see it be offered as the proverbial pound of flesh in a compromise to avoid a longer jail sentence. There are lots of reasons. Certainly looking at it without any other factors involved a time served to three years would be preferable but there may be reasons it was not done. As the others said it is a bit late to change that and since this was in 2005 you should be off probation by now.

This information does not create an attorney /client relationship and should not be use or relied upon to make any decision in your case. Only consultation with your own attorney can provide you with the advice you need for your case.

Asker

Posted

i violated probation with a DUI 2 1/2 years into sentence..County judge resentenced me in original case to 5 1/2 months to 23 months followed by 2 years probation, which im still serving the probation portion. At the resentencing in 2008 2 1/2 years later , judge finally counted my time served in jail til sentencing from the 2005 incarceration. Ijust thought that judge incorrectly sentenced me first time in 2005, and somehow corrected it when i violated with DUI in 2008. Shouldnt he of rejected plea agreement in 2005 of 3 years probation knowing i spent time in jail on those charges? thank you for advice

Adam D. Zucker

Adam D. Zucker

Posted

Its tough actually its impossible for anyone here to say why your attorney did what they did. Not saying its wrong because we just don't know enough.

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