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Question about parole

Crovax

Crovax

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Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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I’m not sure. But it’s not worth it Crovax. Just walk away. ;)

Seriously though, my wild assed guess would be that the clock would just continue to tick...
 
MaggieD said:
I’m not sure. But it’s not worth it Crovax. Just walk away. ;)

Seriously though, my wild assed guess would be that the clock would just continue to tick...
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Lol :mrgreen: there is a real life case that similar to this scenario, I was just wondering for my own edification
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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It would be considered "time served". depending on the new sentence, he could get out in 5 or get more years but the 20 would count.
 
humbolt said:
Doesn't double jeopardy apply?
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No, because overturning the conviction in this case is like the trial never happened. It was due to incompetence by the defense attorney.
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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I don't know that if the conviction was vacated, they could be retried for the same crime. Wouldn't that be double jeopardy that is illegal in all 50 states? So the question is moot as it can't happen under our laws?
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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Double jeopardy requires that if after a re-trial the defendant is convicted again for the same offense, they must get credit for time served.
 
AlbqOwl said:
I don't know that if the conviction was vacated, they could be retried for the same crime. Wouldn't that be double jeopardy that is illegal in all 50 states? So the question is moot as it can't happen under our laws?
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In this case the conviction is set aside because the defense attorney was incompetent and they didn't get a fair trial so it's not double jeopardy. It's actually a 2nd chance for the defendant.
 
Captain Adverse said:
Double jeopardy requires that if after a re-trial the defendant is convicted again for the same offense, they must get credit for time served.
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That sounds right though I don't remember exactly how it works from my law classes--no, I am not an attorney nor did I ever aspire to be. :)

But in the case of a retrial when a conviction is overturned I think you could be right, but of course the new trial, if it resulted in a conviction, could have an even more severe penalty, i.e. life sentence with no parole or some such.

I thought double jeopardy means you cannot be tried for the same offense once you have been declared not guilty in court, even when overwhelming new evidence surfaces that would have certainly convicted you.
 
AlbqOwl said:
That sounds right though I don't remember exactly how it works from my law classes--no, I am not an attorney nor did I ever aspire to be. :)

But in the case of a retrial when a conviction is overturned I think you could be right, but of course the new trial, if it resulted in a conviction, could have an even more severe penalty, i.e. life sentence with no parole or some such.

I thought double jeopardy means you cannot be tried for the same offense once you have been declared not guilty in court, even when overwhelming new evidence surfaces that would have certainly convicted you.
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Here's a helpful hint:

Specifically, double jeopardy protects against:
a prosecution for the same offense after an acquittal
a prosecution for the same offense after a conviction, and
more than one punishment for the same offense.
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https://www.nolo.com/legal-encyclopedia/the-prohibition-against-double-jeopardy.html

Essentially, if one is tried and a sentence is imposed, then during the appellate process the case is vacated and remanded for retrial, it is a retrial for the same crime. Now it is possible that a new trial might impose a different sentence, but it is not "new" punishment that can ignore punishment already served. Otherwise the defendant would be facing multiple punishment for the same offense.

Ex. Using OP information: Original trial sentence 25 years, retrial sentence 30 years. If the 20 years for the original sentence is not counted, then the defendant ends up serving 50 years for what is only supposed to be a 30 year sentence.
 
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Crovax said:
In this case the conviction is set aside because the defense attorney was incompetent and they didn't get a fair trial so it's not double jeopardy. It's actually a 2nd chance for the defendant.
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Yes, that is different from the dictionary definition in which the verdict stands, but the conviction is set aside such as happens when the governor or President pardon somebody. But setting the verdict aside as in a mistrial is something different. Probably time already served would be taken into account but I don't know if that is an actual requirement for the judge's verdict if a new trial also results in conviction.
 
Captain Adverse said:
Here's a helpful hint:

https://www.nolo.com/legal-encyclopedia/the-prohibition-against-double-jeopardy.html

Essentially, if one is tried and a sentence is imposed, then during the appellate process the case is vacated and remanded for retrial, it is a retrial for the same crime. Now it is possible that a new trial might impose a different sentence, but it is not "new" punishment that can ignore punishment already served. Otherwise the defendant would be facing double punishment for the same offense.
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Yes, I read that at Nolo.com. But I think in the case of a new trial, there is a possibility that the law would see it as the proper sentence for the offense rather than a 'second' punishment? I don't know. There is a gray area there.
 
Captain Adverse said:
Here's a helpful hint:

https://www.nolo.com/legal-encyclopedia/the-prohibition-against-double-jeopardy.html

Essentially, if one is tried and a sentence is imposed, then during the appellate process the case is vacated and remanded for retrial, it is a retrial for the same crime. Now it is possible that a new trial might impose a different sentence, but it is not "new" punishment that can ignore punishment already served. Otherwise the defendant would be facing multiple punishment for the same offense.

Ex. Using OP information: Original trial sentence 25 years, retrial sentence 30 years. If the 20 years for the original sentence is not counted, then the defendant ends up serving 50 years for what is only supposed to be a 30 year sentence.
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But a retrial is a brand new trial. And if new evidence presented at the second trial makes the crime even worse, if the law gives the judge the discretion, cannot the judge impose a greater sentence than the first judge imposed?
 
AlbqOwl said:
But a retrial is a brand new trial. And if new evidence presented at the second trial makes the crime even worse, if the law gives the judge the discretion, cannot the judge impose a greater sentence than the first judge imposed?
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That does not affect time served. It is the same crime being re-tried that the defendant has already done time for. The time served must be credited.

That's what I pointed out already:

Captain Adverse said:
Essentially, if one is tried and a sentence is imposed, then during the appellate process the case is vacated and remanded for retrial, it is a retrial for the same crime. Now it is possible that a new trial might impose a different sentence, but it is not "new" punishment that can ignore punishment already served. Otherwise the defendant would be facing multiple punishment for the same offense.

Ex. Using OP information: Original trial sentence 25 years, retrial sentence 30 years. If the 20 years for the original sentence is not counted, then the defendant ends up serving 50 years for what is only supposed to be a 30 year sentence.
Click to expand...
 
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Captain Adverse said:
That does not affect time served. It is the same crime being re-tried that the defendant has already done time for. The time served must be credited.

That's what I pointed out already:
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I do understand what you are arguing. I am not saying the judge should not take into consideration time already served and you may be right that the law requires the judge to do so--I am unaware of the specifics of such a law--but I still do not think the judge, if the jury convicts, is bound to assign the exact same penalty as the previous judge assigned if the law allows a greater penalty for such a crime.

I think a new trial is a brand new trial conducted as if the original trial set aside never existed.
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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The feds have not had parole in many years, I think back in to the 80's. IMO, parole is a useful tool to control prison crowding and also deliver justice, but the feds are having it their way.

Some states still have parole, but I don't know how many. Otherwise, the hypothetical is too convoluted IMO.
 
Thoreau72 said:
The feds have not had parole in many years, I think back in to the 80's. IMO, parole is a useful tool to control prison crowding and also deliver justice, but the feds are having it their way.

Some states still have parole, but I don't know how many. Otherwise, the hypothetical is too convoluted IMO.
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Well it's not much of a hypothetical, it's based on a real case. The amount of years are a little different and the retrial hasn't happened yet but it's a possibility and I was just wondering if he would get credit for time served or not.
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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In the real world the DA would drag their feet and eat up most of that 5 years anyway. ;)

But I would think it'd continue ticking.
 
radcen said:
In the real world the DA would drag their feet and eat up most of that 5 years anyway. ;)

But I would think it'd continue ticking.
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Oh they are, the real case has 12 years til parole eligibility but a good 4 of them will probably be used by the time it is done.
 
Crovax said:
Let's say someone get convicted of murder and gets sentenced to life in prison with eligibility for parole in 25 years. 20 years into thier sentence the conviction gets vacated but they are able to be retried. The get convicted again with the same sentence. Would they be eligible for parole in 5 years or would the clock start over?
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Two things in play:

1. You cannot receive a higher sentence after retrial of an offense unless you engaged in other qualifying misconduct between the time of the initial offense and conviction at retrial. If you do engage in new misconduct that can be considered by the judge in resentencing you after conviction upon retrial (it can separately lead to its own charge). Now, this is a murder case, so that doesn't really apply.

2. You will receive credit for time served as a result of the first conviction (and time spent held for trial, etc) after the second conviction.



So, the clock never "starts over" on a given offense. And if you think about it, it would be an absurd and horrific method to discourage people from exercising their right to appeal their convictions if things were otherwise.
 
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AlbqOwl said:
I don't know that if the conviction was vacated, they could be retried for the same crime. Wouldn't that be double jeopardy that is illegal in all 50 states? So the question is moot as it can't happen under our laws?
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You are entirely mistaken. It had actually been explained a few posts before yours.


You cannot be retried following acquittal. He is not talking about acquittal. He is talking about a conviction being overturned.
 
Mr Person said:
You are entirely mistaken. It had actually been explained a few posts before yours.


You cannot be retried following acquittal. He is not talking about acquittal. He is talking about a conviction being overturned.
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So if I am tried and convicted of a crime, and that conviction is overturned by a higher court, I can still be tried again?
 
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