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Criminal Court

You Have Been Charged with a Misdemeanor–What Happens Now?

This page provides basic information about what typically happens in cases where a person is charged with a misdemeanor criminal offense. It is not a complete description of the judicial process, the laws that apply in criminal cases, or the rights of a person accused of a crime. If you need further information or advice, you should contact an attorney. Although court clerks can provide some information (such as court schedules or the amount of filing fees), neither the judge nor the court clerks can give you legal advice.

What is a misdemeanor?

Offenses can be grouped into three general categories. The most serious are felonies, the penalty for which can include a term in a state prison. Next are misdemeanors, the penalty for which can include up to one year in a county jail. The least serious are infractions (mostly traffic offenses), for which the maximum penalty does not exceed a $100.00 fine plus court costs.

Procedures for different categories of offenses are somewhat different. The procedure for the least serious offenses (infractions) is the quickest and simplest. The procedure for felonies is the most complicated, because the need to protect both the public and the rights of the accused is greatest for the most serious offenses.

If you have been charged with a misdemeanor, you will have been given a citation prepared by a police officer, or a complaint prepared by a prosecutor. The citation or complaint includes a short statement of the offense with which you are charged, and states whether the offense is an infraction, a misdemeanor, or a felony.

In every criminal case, there are two parties. The plaintiff is the State of Idaho, who is represented by a county prosecutor (if you are charged with committing a misdemeanor outside a city), or a city prosecutor (if you are charged with committing a misdemeanor within a city). The person charged with a crime is called the defendant.

I received a citation or complaint that says I am charged with a misdemeanor. What happens next?

If you received a citation, it states a date and time to appear at the county courthouse. If you received a complaint, you will also have been given a summons that states a date and time to appear at the county courthouse. The date and time in the citation or summons is for an initial appearance (also called an arraignment).

What happens at the initial appearance (arraignment)?

The initial appearance is for the court to inform you of your rights, to inform you of the charges and the possible penalties, to find out if you want a lawyer, and to find out if you want to plead guilty or not guilty.

You should appear at the courthouse 15 minutes before the time shown on your citation or summons, and check in at the magistrate court clerk’s office. The clerk can direct you to the courtroom in which your case will be called.

Rights Form: You are given a rights form, which has important information about your legal rights. When your case is called, the judge asks if you have read the form and if you understand your rights. If you do not understand the information in the form, tell the judge what you don’t understand and the judge will explain.

Charges and Possible Penalties: The judge tells you the charge(s) and the possible penalties, and asks if you understand them. (At this point, the judge is asking only if you understand the charges, the judge is not asking if you admit to anything.) If you do not understand the charge or the possible penalties, tell the judge what you don’t understand and the judge will explain.

Right to Counsel: The judge asks if you want to be represented by a lawyer. If you want a lawyer but can’t afford one, you can ask the judge for a court-appointed lawyer. If you ask for a court-appointed lawyer, you fill out a form or the judge asks questions about your finances to make sure you qualify. If the court appoints a lawyer for you, you may be required to reimburse the county for all or part of the costs of the court-appointed lawyer. A court-appointed lawyer is available only if the charge is one for which jail time is possible.

Plea – Guilty or Not Guilty? The judge asks if you want to plead guilty or not guilty. If you plead guilty, you are admitting that you committed the offense with which you are charged. You are also giving up your right to a trial and your right to remain silent. If you are not sure whether you want to plead guilty or not guilty, you can ask the judge to reschedule your initial appearance for another day so you can talk to a lawyer first. You can also plead not guilty, and talk to a lawyer before your next appearance or simply leave it to the prosecution to try to prove its case.

Not Guilty Plea – Court or Jury Trial? If you plead not guilty, the judge asks if you want a court trial or a jury trial. In a court trial, the judge hears the evidence and decides if you are guilty. In a jury trial, six members of the community are called to be the jury, and the jury hears the evidence and decides if you are guilty. If you are found guilty after either a court trial or a jury trial, the judge decides the penalty (the sentence). A court trial usually takes less than an hour, a jury trial usually takes one full day.

If you plead not guilty, the judge asks you for your current mailing address. The court schedules your trial for another day, and notice of the date and time for your trial is mailed to you at the address you give the court or to your attorney. The judge does not listen to your testimony and decide if you are guilty at your initial appearance.

Guilty Plea – Sentencing: If you plead guilty, the judge may decide the sentence at that time, or may schedule a sentencing hearing for another day. At the time you are sentenced, you may make a statement on your own behalf. Fines are due, and jail time starts, at the time you are sentenced, unless you make other arrangements. (See number 9 below for more information about sentencing.)

What if I am under 18?

If you are under 18 years of age, you must have a parent or guardian with you at all court proceedings. Your case will proceed the same as an adult case. Defendants who are under 18, and who are found guilty and sentenced to serve time in jail, serve their time in a juvenile detention facility.

If you were served with a petition, instead of a citation or complaint, then your case was brought under the Juvenile Corrections Act and will proceed according to the Idaho Juvenile Rules, and the information in this pamphlet does not apply.

I plead “not guilty” at my initial appearance. What happens next?

The court schedules a pretrial conference and trial, and notice of the date and time for your case is mailed to you or your attorney. If you do not receive the notice within a week or two after your initial appearance, call your attorney or the court to find out when your next appearance will be.

If your case is set for a jury trial, the court usually schedules a pretrial conference two to four weeks before the trial. If your case is set for a court trial, the court usually does not schedule a separate pretrial conference for another day prior to trial; instead, the pretrial conference happens immediately before the trial.

What happens at a pretrial conference?

At the pretrial conference, both parties must come prepared with the following information: a list of the names, addresses, and phone numbers of any witnesses they intend to call at trial, and a list of any exhibits they intend to offer at trial. You are required to attend the pretrial conference, even if you are represented by a lawyer.

You will have the opportunity to discuss a plea bargain with the prosecution. The prosecution may agree to dismiss or reduce the charge, or may agree to a particular sentence. You may decide to change your plea to guilty. If an agreement is reached, the parties must present their agreement to the court for the judge’s approval. The agreement is usually presented at the pretrial conference, but sometimes this is scheduled for another day. If no agreement is reached, or if the judge rejects the agreement, the case proceeds to trial.

In cases where there will be a jury trial, other pretrial issues are also addressed at the pretrial conference. The judge asks the parties if they will be filing any pretrial motions, and sets a deadline for motions to be filed and heard by the court. (An example of a pretrial motion is a motion to suppress evidence, where a party filing the motion asks the court to decide prior to trial if certain evidence can be used at trial.) The judge also asks the parties if there is any discovery that has not been completed, and sets a deadline for completion of discovery. (Discovery is a formal procedure for the exchange of information between the parties.) The judge also addresses any other issues that need to be resolved before trial.

What happens at a court trial?

A fundamental principle of our system of justice is that the defendant is presumed to be innocent. This principle has two important results. First, the prosecution has the burden to prove that the defendant is guilty, and the prosecution has this burden throughout the trial. Second, the prosecution must prove the defendant guilty beyond a reasonable doubt. A reasonable doubt is not a mere possible or imaginary doubt. It is the kind of doubt that would make an ordinary person hesitant to act in the most important affairs of his or her own life.

Opening Statement: Because the prosecution has the burden of proof, it goes first. The prosecutor may make an opening statement, in which the prosecution summarizes the evidence it is going to present. The defense may then make an opening statement, in which the defense summarizes the evidence it is going to present. The defense may wait to make its opening statement after the prosecution has finished presenting its evidence. (The defense refers to the defendant, and if the defendant is represented by an attorney, to the defendant’s attorney.)

Prosecution Case-in-Chief: The prosecution then begins calling witnesses. Each witness is sworn to tell the truth, and takes a seat in the witness stand. The prosecution asks questions of the witness (called direct examination); the defense may then ask questions of the witness (called cross examination); the prosecution may next ask questions to clarify matters that the witness testified to on cross-examination (called redirect examination); and the defense may then ask questions to clarify matters that the witness testified to on redirect examination (called recross examination). The judge may also ask questions of a witness.

After the last prosecution witness testifies, the prosecutor says that the prosecution rests. After the prosecution rests, the defense is entitled to present evidence, but is not required to do so.

Defense Case: If the defense chooses to present evidence, the defense may then make its opening statement, if it did not do so after the prosecution’s opening statement. The defense then begins calling its witnesses. Each witness is sworn to tell the truth, and takes a seat in the witness stand. The defense asks questions of the witness (called direct examination); the prosecution may then ask questions of the witness (called cross examination); followed by redirect and recross examination.

The defendant is entitled to testify as a witness if the defendant chooses to do so. Because the defendant has the right to remain silent, the defendant cannot be required to testify. The judge cannot use the defendant’s decision not to testify as evidence that the defendant is guilty. If the defendant chooses to testify, then the defendant has waived the right to remain silent; the prosecutor can question (cross examine) the defendant, and the judge can also question the defendant, the same as any other witness.

Prosecution Rebuttal Case: After the last defense witness testifies (after the defense rests), the prosecution may call rebuttal witnesses. Rebuttal witnesses are witnesses called to present testimony that answers (or rebuts) the defense’s evidence. Rebuttal witnesses are questioned in the same manner as other prosecution witnesses.

Evidence: Evidence can be either witness testimony or exhibits. Exhibits are physical items such as photographs, documents, or other things. If a party (the prosecution and/or the defense) has an exhibit it wants to offer as evidence, the party must first call a witness who can identify the exhibit. (For example, if a party wants to offer a photograph, the party must call the person who took the photo, or someone else who can testify that the photo is an accurate picture of the objects shown in the photo.) Once the exhibit is properly identified, the party offering the exhibit asks the court to admit the exhibit into evidence. The other party may object if there is a reason why the exhibit should not be allowed. The judge decides if the exhibit will be allowed. If the exhibit is not allowed, then it is not part of the evidence, and the judge will not consider the exhibit in deciding if the defendant is guilty.

While one party asks questions of a witness, the other party may object either to the question or to the witness’ answer if there is a reason why the question or answer should not be allowed. The Idaho Supreme Court has adopted rules, called the Idaho Rules of Evidence, which the judge must apply in determining if the judge will allow a question, a witness’ answer, or an exhibit.

Closing Arguments: After the last rebuttal witness testifies, the prosecutor again says that the prosecution rests. The prosecution may then present its closing argument, in which the prosecution reviews the evidence and describes how the evidence proves its case. The defense may then present its closing argument, in which the defense reviews the evidence and describes how it fails to prove the prosecution’s case. After the defense’ closing argument, the prosecution may make a final closing argument.

Verdict: After closing arguments, the judge decides if the defendant is guilty. The court may make its decision right after the closing arguments. If the judge needs more time to think about the case, the judge takes the case under advisement, and issues a written decision later.

If the judge finds the defendant guilty, the judge determines the sentence.

Subpoenas – What if there is a witness I need to have testify at trial, and I want to make sure the witness shows up at the trial?

You can ask the court clerk to issue a subpoena, which orders the witness to appear at the trial. The subpoena must be delivered (served) to the witness, and a return of service (a statement by the person delivering the subpoena that service was completed) must be filed with the court. You may want to make arrangements with the sheriff’s office or a private process server to serve the subpoena to the witness. (There is a fee for service of process.) If the witness fails to appear, the court can hold the witness in contempt and sentence the witness to fines and/or jail time.

What happens at a jury trial?

In a jury trial, six community members are called to be the jury; they hear the evidence and decide if you are guilty. The trial begins with jury selection. About 25 potential jurors are summoned to court the morning of your trial. The judge begins by asking the potential jurors questions to make sure that none has previous knowledge of the parties, or any beliefs about the issues in the case that might cause a juror to be biased for or against either party. The prosecution, and then the defense, may also ask questions.

Each party may challenge a potential juror. If either party believes a juror might be biased, the party can challenge the juror for cause, and the judge decides whether to excuse the juror. Each party also has four peremptory challenges. A peremptory challenge allows a party to have a juror excused without stating any reason. Jurors’ names are drawn at random, and the first six jurors who are not challenged and excused are the jury.

The court prepares jury instructions that describe to the jury what is going to happen and what the jury is to do. The court provides both parties with copies of the instructions before they are given to the jury, and asks if either party has objections to the instructions. The judge hears the objections and decides whether to make any changes to the instructions while the jury is outside the courtroom. Both parties proceed with opening statements, calling witnesses, and closing arguments, as described above for a court trial. If the jury finds the defendant guilty, the judge determines the sentence.

What happens if I plead guilty or am found guilty?

If you plead guilty or are found guilty, the judge must next determine the penalty (also called the sentence). The court may decide the sentence at the time you plead guilty or are found guilty, or may schedule sentencing for another day. (For example, in domestic battery cases, the law requires the defendant to get an evaluation from a court-approved anger management counselor prior to sentencing, and in most drug or alcohol-related cases, the law requires the defendant to get an evaluation from a court-approved drug and alcohol abuse counselor before sentencing.)

At sentencing, the prosecution may make a recommendation about the sentence. Your attorney may make a recommendation, and you may make a statement on your own behalf. The judge decides the sentence, and it is written in a document called a judgment. You will be given a copy of the judgment.

In determining your sentence, the court considers three factors: accountability (punishment), skill development (to help avoid future offenses), and community protection. The judge imposes a sentence that the court determines is appropriate to the defendant and to the circumstances, in light of these three factors.

The sentence must be within minimum or maximum limits set by statute. All misdemeanor offenses are punishable by fines, court costs, community service, and/or probation (explained further below). Some misdemeanor offenses are also punishable by jail time and/or a driver’s license suspension. (The judge will have told you the minimum or maximum limits that apply in your case at your initial appearance, as explained above.) If the offense resulted in injury to another person, or damage to another person’s property, you may be required to make restitution (explained further below). If your sentence includes fines, court costs, and/or restitution, the judgment states the specific amount. If your sentence includes community service, jail, probation, and/or a driver’s license suspension, the judgment states a specific period of time for each.

Fines: Fines are due at the time of sentencing, unless you make other arrangements. If you are unable to pay the fines at sentencing, you can ask the court for a later deadline. You can also ask for a monthly payment schedule. There is a $2.00 fee for each monthly payment, to cover the cost of the extra work for the court staff. You can also ask the court to allow you to do community service instead of paying fines, which the court will approve in some circumstances.

Community Service: The judge sets a deadline to complete the community service hours, and you are given instructions where to report to make arrangements. Community service must be completed through a court-approved community service organization. There is a 60-cent per hour fee for community service, which covers the cost of workmen’s compensation insurance. The community service organization sends the court a written notice when you complete your community service.

Restitution: Restitution is the amount a defendant must pay to the victim of the defendant’s crime, to cover the victim’s costs for treatment for an injury, or to repair or replace property damaged by the defendant.

Deadlines for Payment and Community Service: In addition to deadlines for fines, court costs, restitution and community service, the judgment also includes a date and time for a review hearing. If you do not meet the deadlines, you must appear at the review hearing and show good cause why the court should not hold you in contempt. If the judge decides that you did not have good cause, the judge may require you to pay fines and/or serve jail time for contempt. The court is more likely to find good cause, and to allow an extension of the deadline, if you have paid a significant portion of the amount due or have completed a significant portion of the community service before the review hearing.

Jail: Jail time begins at sentencing and continues until the sentence is fully served, unless you make other arrangements. You can ask the judge to allow you to begin your jail term at a later time. In some counties, the judge will give you specific date(s) and time(s) to report to jail. In other counties, you will be told to go to the jail to make arrangements to do your jail time. The extent to which your jail time will be scheduled around work or other important commitments may depend on available jail space. Once your jail time is scheduled, it will be rescheduled only upon proof of compelling reasons, such as a medical emergency or a death in the family. If you fail to report to jail at the scheduled times, a warrant will be issued for your arrest.

If you have a job, you can ask the judge to allow work release. You will be required to obtain a letter from your employer stating the days and hours you work. You will be released from jail in time to go to work and will be required to report back to jail immediately after work. In most counties, there is a fee for each day of work release, to cover the extra work for the jail staff. Permission for work release can be lost if you fail to return immediately after work, or if you violate jail rules (for example, by returning to jail under the influence of alcohol or drugs).

In some counties, you can ask the court to allow you to do work crew instead of jail time. You will be told to go to the jail to make arrangements to work on the sheriff’s work crew. You will be required to report to the jail on specific days and at specific times, and will spend the day working on community service projects. The extent to which your work crew days will be scheduled around work or other important commitments may depend on available work crew space. Once your work crew time is scheduled, it will be rescheduled only upon proof of compelling reasons, such as medical emergency or a death in the family. Permission to do work crew will be lost if you fail to appear when scheduled, or if you violate work crew rules (for example, by arriving for work crew under the influence of alcohol or drugs.) If you leave the work crew without the permission of the supervising deputy, you can be charged with the crime of escape.

Probation: The court may place you on probation for a specific period of time. If you are placed on probation, the court will suspend all or part of the fines or jail time. You do not have to pay suspended fines or serve suspended jail time if you comply with the conditions of probation.

Typical conditions that a court may impose in misdemeanor cases include a requirement that the defendant: not have any further misdemeanor or felony violations; complete anger management or conflict resolution education or counseling (typical in battery cases); have no contact with certain persons (typical in battery or stalking cases); complete drug or alcohol education or treatment (typical in drug or alcohol-related cases); submit to drug or alcohol testing (typical in drug or alcohol-related cases); etc.

Probation may be either supervised or unsupervised. Under supervised probation, the defendant must regularly meet with a probation officer. In most counties, if you are on supervised probation, you will be required to pay a monthly fee to help cover the costs of supervision.

If you do not comply with the terms of probation, the prosecutor may file a motion asking the court to find that you have violated your probation. If the court finds you have violated probation, it may order that you pay all or part of the suspended fines or complete all or part of the suspended jail time. The court may also change the terms of your probation to include anything the court could have ordered at the original sentencing.

Driver’s License Suspension: There are some offenses for which the statute provides that the court will or may suspend the defendant’s driver’s license if the defendant pleads guilty or is found guilty. In some instances, suspension begins at sentencing; in some instances, the suspension begins when a current period of suspension has passed.

If your sentence includes a driver’s license suspension, the court may require you to surrender your license to the court at sentencing. You can ask the judge to wait a few days for the suspension to begin, which the judge may allow under some circumstances.

The sentence may state that the suspension is absolute. If your judgment does not say that the suspension is absolute, you can apply at the court clerk’s office for permission to get a temporary restricted driver’s permit that allows you to drive for work, school, or family medical reasons. Do not drive until you have the restricted permit in your possession; once you have the permit, drive only during the times and for the purposes stated on the permit. If the suspension is absolute, you cannot get a permit for the period of time that the suspension is absolute.

There are other offenses for which the statute provides that the Idaho Department of Transportation (IDOT) will suspend the defendant’s driver’s license. For example, the IDOT may suspend a person’s driver’s license when a person has lost all of their “points” due to traffic infractions. For more information about suspension of driver’s licenses by the IDOT, you may call the IDOT or your local department of motor vehicles.

What is an appeal?

In an appeal, the district court decides whether the magistrate judge in your case followed all the proper procedures and properly applied all the applicable laws. Either you or the prosecutor may file an appeal within 42 days after the judgment is entered. What happens if I don’t show up when I am supposed to?

If you do not appear for your initial appearance (the date and time on your citation, or the date and time on the summons that was given to you with the complaint), you may be charged with an additional offense, commonly known as failure to appear (FTA). An FTA is a misdemeanor, punishable by up to six months in jail and/or a fine of up to $300, plus court costs. If you are charged with an FTA, the court is likely to issue a warrant for your arrest.

If you fail to appear for proceedings scheduled by the court after your initial appearance, the court is likely to issue a warrant for your arrest. You will be required to show good cause why the court should not hold you in contempt. If you are held in contempt, you may be required to pay fines and/or to serve time in jail.

A failure to appear results in a great deal of trouble both for the court and for the defendant. If you can’t appear at the scheduled time, contact your attorney or the court as soon as possible. If you or your attorney contacts the court ahead of time and if you have a good reason, the court may reschedule your case. If you do not contact the court ahead of time, the court will require compelling reasons before it excuses a failure to appear.

Do I need a lawyer?

You are not required to have a lawyer. You may represent yourself if you wish. Another person who is not a lawyer may not represent you in court.

Whether you want to represent yourself or whether you want a lawyer to represent you is a decision only you can make. Idaho courts have tried to make it easier for people who want to represent themselves in court, particularly in misdemeanor cases, but a non-lawyer who represents him or herself is expected to follow court rules and procedures the same as a lawyer.

You may have more reason to want an attorney in a jury trial than in a court trial, and you may have more reason to want an attorney on appeal than at trial. Procedures are somewhat more complicated in jury trials than in court trials. On appeal, the issue is whether the trial court properly followed the law, so you need to be prepared to learn and present the law that applies in your case. In addition, on appeal there are some procedures which, if not strictly followed, will result in dismissal of the appeal. Despite these factors, you may want to represent yourself, and you have the right to do so.

If you want to represent yourself in court, and want more information about the law that applies in your case, you can consult with an attorney without hiring the attorney to represent you in court. You can also get more information at courthouse and public libraries. The citation or complaint states the section number of the state statute or the county or city ordinance under which you are charged. The procedures the court follows are set by rules adopted by the Idaho Supreme Court. Both the state statutes and the supreme court rules are set forth in the Idaho Code, which can be found at all courthouses and in most public libraries in the state. Copies of county and city ordinances can be found at local courthouses, local city or county offices, and/or local libraries.

The court rules include certain requirements as to the format of documents, such as motions, to be filed with the court. Court clerks can provide some information as to the format of documents to be filed with the court. The court clerks do not have standardized, preprinted forms that can be completed and filed with the court in misdemeanor cases, and cannot advise you as to the information to be included in your document.

Other Information

Please remember that a misdemeanor citation is a serious matter that is decided in a formal setting. You should dress appropriately. You should be on time, and if you are represented by a lawyer, you should be 15 minutes early so you can talk to your lawyer before your hearing. Food or drink is not allowed in a courtroom. Children should not be brought into a courtroom unless they are old enough to sit quietly and not disrupt the proceedings. Cell phones and pagers should be turned off while you are in the courtroom.

If you are represented by a lawyer, listen to his or her advice, and ask questions so that you understand what is happening and can make the best decisions for yourself. If you are not represented by a lawyer, make the effort to become familiar with the law and procedures involved in your case. The court cannot represent you or advise you on what you should do.

Please be patient. There may be a delay before your case is called, and there are a variety of reasons why delays happen. It is often necessary to schedule several hearings for the same time, to make the most efficient use of court time (and taxpayer money). Sometimes, a hearing scheduled earlier in the day takes longer than the court or the parties anticipated. Sometimes the court must deal with urgent matters (such as emergency child protection hearings) which take precedence over previously scheduled hearings.

Interpreters are available for participants in court proceedings who cannot speak, hear, or understand the English language. If an interpreter is needed in your case, contact the court clerk’s office prior to your first appearance in court.

It is illegal to bring weapons of any kind into a courthouse. Cameras, tape recorders and video recorders are not allowed in a courtroom without prior written approval of the judge.

Misdemeanor proceedings are open to the public and recorded. In any misdemeanor case you can ask for a copy or a transcript of the proceedings at the court clerk’s office. There is a fee for tapes and transcripts.


Except for minor offenses, such as infractions, the law gives the judge a great deal of latitude in determining the sentence. The character and circumstances of the defendant can be as important as the severity of the crime determining what sentence will be imposed.

Procedurally, the sentence is imposed after a separate hearing, held at least two days after judgment has been rendered by the jury or the judge, unless the defendant waives this right. At the sentencing hearing, both sides have the opportunity to present evidence and testimony to recommend an appropriate sentence. The judge is free to ignore these recommendations, even if the prosecutor and defense counsel have agreed to a sentence as a part of a plea agreement. In that event, the defendant may be allowed to withdraw his/her plea.

Presentence Investigation Report

In addition to the information supplied by parties, the judge is typically supplied with a presentence investigation report. A presentence investigation may be ordered in any criminal case. However, presentence investigations are not typically provided in misdemeanor criminal matters because there are not sufficient presentence investigators in the Department of Corrections to provide this support. In a felony case, the judge may state his/her reasons on the record for failing to order a presentence investigation.

The presentence investigator interviews the defendant and often other individuals such as relatives, friends, and employers. With that information, the presentence investigator compiles a social history of the defendant which covers the defendant’s education, employment record, family situation, physical and mental health, and community ties. The presentence investigator will also assemble the defendant’s prior criminal record, the defendant’s version of the facts surrounding the crime, and the police and other witnesses’ verion of those facts.
In appropriate cases, the investigator will recommend alternatives for rehabilitation such as counseling but the report does not contain a recommendation on the length of the sentence. The prosecution and defense typically have access to the presentence report prior to the sentencing hearing. Either side may present evidence to rebut or supplement the presentence investigation report. The report is not available to the media or the public.

If a formal presentence investigation has not been ordered, the judge will at least be supplied with the defendant’s prior criminal record and may ask the defendant and his/her lawyer to prepare an informal presentence report.

At the conclusion of the presentence hearing, the judge must give the defendant an opportunity to speak on his/her own behalf. Then the judge pronounces the sentence. The length of the sentence imposed must be within the statutory minimum and maximum time prescribed by law for that offense but the type of sentence is up to the judge’s discretion with a few important qualifications. Statutory minimum and maximum for most crimes are included in case law. For example, the habitual criminal or persistent violator outlined in Idaho Code section 19-2514 is imposed when a person is convicted of three or more felonies and is considered a persistent violator in this situation and the individual is subjected to a sentence of at least five years to life.

Withheld Judgment

In all non-capital cases (offenses not punishable by death), the judge may withhold judgment. In that case, no judgment of conviction is entered unless the conditions of the withheld judgment are violated by the defendant. Upon satisfactory completion of a supervised or non-supervised probationary period, the case against the defendant will be dismissed.

The conditions imposed upon the defendant during the probationary period may be simply that he/she stay out of trouble with the law. Other common probation conditions include restitution to the victim, completion of a drug/alcohol-related program, performance of volunteer services, and reimbursement to the county of the cost of that individual’s prosecution, including the cost of the public defender if one was appointed.

A less common condition is that the defendant serve some jail time before the case is dismissed. At the end of the probationary period, the defendant or his/her probation officer may petition the court to dismiss the case. However, in the event of a subsequent arrest, the facts of the previous withheld judgment will be known to the presentence investigator by consulting the withheld judgment file maintained by the Idaho Supreme Court. The file maintained by the Supreme Court does not include information about withheld judgments entered on felony cases.

Probation or Suspended Sentence

The judge may enter judgment against the defendant and then sentence him/her to probation for a period not to exceed the maximum sentence provided for the offense or he/she may impose a sentence with all or part of the sentence suspended. In either event, if the defendant violates the condition of the probation or the suspension, usually by a subsequent arrest, the defendant may be ordered to serve out the remainder of the probationary period as stated in the original sentence.

These sentencing alternatives are preferred over going to prison or jail because they are cheaper and because it is believed that the chance for rehabilitation has improved. They may be, and usually are, conditional with conditions being similar to those for probation following withheld judgment.

180-Day Sentences

Frequently, judges will retain 180-day jurisdiction over the defendant. That means that although the judge has imposed a prison sentence, the judge may alter or suspend that sentence after the 180-day period has been completed in which the judge retained jurisdiction. The 180-day period can be extended for an additional 60 days by application of the Board of Corrections.

During the retained jurisdiction period, an alternative available only for felony cases, the defendant will first spend two weeks in a diagnostic unit of the penal system. If it is determined there that the defendant is not dangerous, the defendant will go on to the North Idaho Correctional Institution at Cottonwood, Idaho. There, the defendant will undergo psychiatric and other testing and may participate in rehabilitation programs. At the end of the retained jurisdiction, the judge will decide, based upon the Board of Corrections’ evaluation of the defendant’s performance during the period, whether the remainder of the sentence shall be suspended.

Concurrent vs. Consecutive Sentences

This issue arises when the defendant is already under sentence as well as in sentencing for multiple offenses.

If the defendant is sentenced to two or more concurrent sentences, he/she will not serve more than the longest of those sentence terms. The impact of the additional concurrent sentences will be on his chances for parole. Although the parole board will look only to the length of the longest sentence for the purpose of scheduling an appearance before the board, it will take the additional sentences into consideration in determining whether to grant the parole.

In the case of consecutive sentences, the defendant will not begin to serve the later sentences until the earlier sentences have been completed or paroled.

Death Penalty

First degree murder, first degree kidnapping, and child murder carry the death penalty in Idaho. Whether the death or life imprisonment will be imposed is decided solely by the judge. The jury only decides guilt or innocence and not the issue of punishment. After the verdict of guilty plea in a first degree murder case, a hearing must be held on the aggravating and mitigating circumstances surrounding the murder. It is at this time that circumstances such as the individual’s background, relationship with his/her family, and the circumstances that may have surrounded the crime are discussed. If the death sentence is imposed, the sentence must be executed by lethal injection.

Helpful Information and Links

Post a Bond for someone at the Sheriff’s Office or call 208-236-7125.

Bannock County Courthouse

624 East Center
Pocatello, Idaho 83201


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