Rule 28.1. Sentencing Procedure; Guidelines; Credit for Time Served

When Held. The court shall conduct a sentencing hearing before imposing sentence. The hearing shall be held at the time fixed by Rule 28(b)(2) and shall be conducted upon the record in the proceeding communications.

Presence. The defendant shall be present, except where sentence may be imposed in the defendant’s absence under Rule 18(j). Where the defendant is absent, counsel shall be heard in the defendant’s stead as Rule 18(j)(5) provides. Rule 18(a)(1); Rule 18(j); 6 R. Stat. § 131.501.

Order of Proceeding. The hearing shall proceed in the following order: the court shall confirm the adjudication upon each count; the court shall receive and rule upon objections to the presentence report under Rule 28(d)(5); the parties may offer evidence in aggravation and in mitigation; the prosecutor shall state the recommendation of the State; a victim may be heard as Rule 20 provides; counsel for the defendant shall be heard; the defendant shall be afforded allocution under Rule 28(b)(4); and the court shall impose sentence and state its reasons.

Evidence. Evidence offered at a sentencing hearing shall be relevant to the sentence. The court may receive information not admissible at trial where it is reliable, provided that the source and substance are disclosed upon the record and each party is afforded an opportunity to respond. The court shall not consider a criminal prosecution in which the defendant was found not guilty. Rule 28(d)(2).

Time. The court may limit the time allowed to each party at the sentencing hearing and shall state the limit upon the record before the hearing begins.

The State. The prosecutor shall state upon the record the sentence recommended by the State and the grounds of the recommendation.

The Defendant. Counsel for the defendant shall state upon the record the sentence sought and the grounds.

Plea Agreements. Where the sentence is governed by an accepted plea agreement, the court shall impose sentence according to the terms of the agreement. Rule 12(d)(6). Where the disposition would exceed the recommendation upon which the plea rests, the court shall proceed as Rule 12(c)(6)(B) requires.

Source. The Supreme Court, through the Judicial Conference, shall have the power to prescribe the sentencing guidelines for the State of Ridgeway. 6 R. Stat. § 131.309; 3 R. Stat. §§ 121.106, 121.401.

Application. The court shall apply the sentencing guidelines in effect at the time of sentencing. The court shall state upon the record the guideline provision applicable to each count and the sentence the guidelines recommend.

Sentence Outside the Recommendation. Where the court imposes a sentence other than that recommended by the guidelines, it shall state upon the record the reasons for doing so and shall enter those reasons in the judgment. No statement of reasons authorises a sentence that exceeds a limit imposed by Rule 28.1(d).

Absence of a Guideline. Where the guidelines do not address the offence, the court shall impose a sentence within the limits fixed by law for that offence and shall state the basis of the sentence upon the record.

Maximum. A judge, upon entering a sentence against a convicted defendant, shall not exceed the maximum permitted sentence in accordance with sentencing game mechanics. 6 R. Stat. § 131.310.

Multiplier. No sentencing guideline shall recommend the imposition of any sentence that exceeds the multiplier limitation set in game mechanics, and no court shall impose a sentence exceeding that limitation. 6 R. Stat. § 131.310.

Expression of the Term. A term of imprisonment shall be expressed in minutes. The judgment shall state the term imposed upon each count.

Multiple Counts. The court shall state whether the terms imposed upon multiple counts run concurrently or consecutively. Where the aggregate of the terms imposed would exceed the maximum permitted sentence or the multiplier limitation, the court shall reduce the aggregate so that it conforms, and shall state the reduction upon the record.

Fines. Where a fine is imposed, it shall be proportioned to the offence. Const. art. V, § 10. The judgment shall state the amount of any fine imposed upon each count.

Illegal Sentence. A sentence that exceeds a limit imposed by this subdivision is illegal and is subject to revision or revocation upon motion under Rule 29(a)(1) or upon the court’s own motion.

Discretion. Credit for time served may, at the discretion of the state judge, be given in all cases where a convicted person was previously arrested for the same incident. 6 R. Stat. § 131.311.

Motion. The defendant may move for credit at the sentencing hearing, and the court may award credit upon its own motion.

Proof. The defendant bears the burden of establishing that the prior arrest was for the same incident and of establishing the period previously served. The arrest record, the booking record of the Department of Corrections, and the record of any pre-trial detention under 6 R. Stat. §§ 131.202 and 131.203 may be received in proof.

Statement. Where credit is awarded the court shall state the amount of the credit, expressed in minutes, upon the record and in the judgment. Where credit is sought and refused the court shall state the refusal and the reason upon the record.

Authority. A state judge, upon the sentencing phase of a criminal proceeding, may impose a period that the convicted person must wait to expunge their conviction. No period imposed shall exceed longer than six (6) months. 6 R. Stat. § 131.312.

Statement. A period imposed under this subdivision shall be stated upon the record and in the judgment, with the date and time from which it runs. Where no period is imposed the judgment shall so state.

Effect. A petition to expunge a conviction shall not be entertained before the period imposed has elapsed. 6 R. Stat. § 131.607(a). Rules 36, 37, and 38 govern the petition and its disposition.