View Full Version : State and Fed Sentences on Same Offense


robertegarrett
11-19-2008, 12:07 AM
Being new to the whole judical and criminal process, I once thought that we had a requirement under the constitution that one could not be tried twice for the same exact offense.
I have learned differently.
My wife was first arrested and charged by the state for a first time drug charge. Right after the state charged her, the feds also reared their ugly heads, and brought federal charges on the exact same offense!
Her attorney assumed that the state would drop their charges in view of the fed charges, or at least put off her state trial until fed trial.
But, no. The state pressed on, and secured conviction and sentencing.
The feds then brought her to trial, and secured a fed conviction on the same exact facts and charges.
As advised by her attorney, this is not double jeopardy because the state and fed gvt are separate legal sovereigns, and thus the laws governing each can be prosecuted, regardless of what the other chooses to do.

If this should happen to you, please read on. It gets a bit technical, but if you should be faced with this, it is important to know the facts.

OK, for those interested in what can happen.
State sentence imposed, and state custody begins.
While under state sentence, fed trial concluded, and federal sentence imposed. The Fed judge imposed concurrent sentences, with time of fed sentence to begin upon the date of her first arrest, which was months before either state or fed trial or sentencing.

Their is is principal of law that says the original jurisdiction bringing charges is the one that must first be satisfied in an incarceration. So the fed conviction and sentencing did not transfer her over to the feds. Finish the state sentence, and the feds then file a detainer for service of the remaining fed sentence.

So, we naively thought that since the fed sentence was set by the court to run from her inital arrest date, and the sentences were concurrent, then alll time from her arrest date was counting against her fed sentence.
But that aint so.
If we had not had an excellent attorney, she would just have served out her state time, and then expected that once she had completed that and was then sent over to the feds for completetion of the remaining fed sentence (a year or two lionger than the state sentence), it would be over.
Come to find out that, under federal law, regardless of the term of the federal sentence, or the date that the fed judge sets it to begin, NO time served, even under a concurrent sentence with a state, counts at all against the fed sentence. So if we had not had a good attorney on her fed case, then once her state sentence was completed, then her ENTIRE state time served would have been excluded as counting as concurrent time served under her fed sentence.

If you are still with me, this is what our attorney did. He made an immediate motion, after her federal conviction, back before the state sentencing judge, asking that the remainder of her state sentence be suspended in view of her subsequent federal conviction, thus allowing her to begin immediate service of her fed sentence. The state judge granted it. This saved her years of incarceration time.

I hope this has not bored you, but could be very important if you also are caught in this double jeopardy vice.

tolong
11-19-2008, 07:58 AM
That is really messed up. So when the judge sentenced with a concurrent sentence, what did he think it was going run with? Thin air? Don't the judges understand/know the laws they are enforcing? It appears not! Or is the problem with the way BOP is interpreting the sentence?

bellisq
11-19-2008, 12:24 PM
Robert: not boring at all, it is major info in cases where there is double prosecution. very few In addition, not every state is the same...and the two lawyers must interact to get the shortest outcome. Few state lawyers have a clue of the ramifications.

irshnrse
11-25-2008, 09:17 PM
Robert, I am sorry you and your wife have to deal with this.
My husband received 20 years state and then was indicted federally and they used the state conviction in that indictment. Sooo, he received 20 state and 30 federal running concurrently. Our attorney unsuccessfully challenged the whole double jeopardy of it all, but thanks to "dual sovereignty" of state and federal, he lost. We knew it was a losing battle, but definitely worth a try!
I am sorry your attorney did not fight to get credit for both sentences. We were blessed and the judge said at sentencing that the 31 months he had already served awaiting resolution of the federal case were credited.
Another way they get ya (I think) is that we were naive enough to think that he would go to a federal prison with his state running, but since the state sentenced him first he is in a state facility until he is paroled and picked up by the Marshals.
Our state decided that they did not want him here, so they sent him to another state 700 miles away. That state has decided that they don't like the fact that he has a lengthy federal sentence and has kept him locked down 23 hrs a day since he arrived there at the end of January 2007. He has been incarcerated a total of 53 months and has NEVER had a write-up, not one. Sigh...

bow-hunter
11-26-2008, 07:42 AM
It's amazing at how twisted our judicial system is. It PLAINLY says in the constitution that a person cannot be tried twice on the same offense, it also states that Americans have the right to keep and bear arms and that right SHALL NOT BE INFRINGED UPON. Your case shows just how crooked they really are.The government twists and bends laws and ammends them to benefit themselves.

joshdudley
11-26-2008, 10:50 AM
Robert, I am sorry you and your wife have to deal with this.
My husband received 20 years state and then was indicted federally and they used the state conviction in that indictment. Sooo, he received 20 state and 30 federal running concurrently. Our attorney unsuccessfully challenged the whole double jeopardy of it all, but thanks to "dual sovereignty" of state and federal, he lost. We knew it was a losing battle, but definitely worth a try!
I am sorry your attorney did not fight to get credit for both sentences. We were blessed and the judge said at sentencing that the 31 months he had already served awaiting resolution of the federal case were credited.
Another way they get ya (I think) is that we were naive enough to think that he would go to a federal prison with his state running, but since the state sentenced him first he is in a state facility until he is paroled and picked up by the Marshals.
Our state decided that they did not want him here, so they sent him to another state 700 miles away. That state has decided that they don't like the fact that he has a lengthy federal sentence and has kept him locked down 23 hrs a day since he arrived there at the end of January 2007. He has been incarcerated a total of 53 months and has NEVER had a write-up, not one. Sigh...

So since the state and federal sentences were running concurrently basically it means that as opposed to serving 20 years at state prison (probably less with parole factored in) and then serving 30 years at federal prison he had to do until he got parole at state prison and then be transferred over to federal prison to serve the remainder of his sentence?

Its all very confusing. If he has to do 30 years anyway what would motivate him to get parole (i.e. behave well and work hard) in the state system if he knows he'll just have to get out and go straight to a federal prison?

Zelda50
11-26-2008, 12:07 PM
Well, he's probably only earning good time on the state sentence? So if he can get paroled from that to the feds, then his federal good time will begin. He's got that federal detainer in state prison, so if he can get paroled to federal prison, he won't have a detainer and maybe can get to a facility closer to home. Those are just a couple possibilities that might apply. Zelda

irshnrse
11-26-2008, 12:20 PM
Right, we have looked at everything. He is not even up for parole on the state sentence until 2 years from this month. We have put in for early parole consideration, but nothing. I know he will be going there at some point, but that is really no consolation at this point. He is locked down 23 hours a day for absolutely no reason and this probably would not be the case in a federal prison, unless the facility was on lockdown or he screwed up (which he has not for the 53 months he has been incarcerated).

Zelda50
11-26-2008, 04:06 PM
Maybe he should file a Habeas challenging his being locked down and, if it seems like enough trouble to them, they'll parole him to his federal sentence. Just a thought...

Butch Cassidy
11-26-2008, 08:50 PM
Maybe he should file a Habeas challenging his being locked down and, if it seems like enough trouble to them, they'll parole him to his federal sentence. Just a thought...

Sounds like a good idea.:thumbsup:

irshnrse
11-26-2008, 11:43 PM
Thank you Zelda. I think we will try that.
Thanks Butch, too.

robertegarrett
12-06-2008, 08:06 PM
If you want a detailed legal summary of BOPs application of the law in this area, go to www.bop.gov/news/ifss.pdf (http://www.bop.gov/news/ifss.pdf)

boflipflops36
12-07-2008, 08:27 AM
robert,
What happens when you are own probation for 1 yr with Federal. You have 45 days left of Federal.Then get charges from County or state 90 days probation. Violate that probation with another charge?
My grandson is in City jail goes to plea tomorrow. Feds have issued a hold. He could have got out with a 100.00 bond, But would be held because of the Fed Hold.
Will Feds take him tomorrow or will he stay there till this hearing is over and he finished the time in Count or state Jail?

mrskkelley
12-09-2008, 06:09 PM
I guess I should consider myself lucky (?) The state couldn't make the case against my husband so they turned it over to the feds. I guess they have more latitude to lie, cheat, steal a conviction or in this case squeeze a plea out of somebody. I love this country and can't think of anywhere else I would want to live but what I've seen since this all started gives me pause. I have high hopes for the new administration and January 20 can't get there soon enough for me!