Larry Elmen (12/23/2020)

Federal Criminal Sentencing: Where Will I Go After Sentencing — Federal Prison or State Prison?

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Where a Defendant serves a Federal sentence of incarceration when there is a State sentence of incarceration depends on whether the Federal Government or State has primary jurisdiction over the defendant.

Primary jurisdiction is determined by who had control over a defendant when the Federal Court arraigned and detained the defendant pending trial for the current Federal criminal charge. The answer will determine whether the Federal defendant will first serve his Federal sentence in Federal prison or return to the State to serve his State prison sentence.

scales of justice next to wooden gavel

There are three possibilities:

First, a defendant who is arraigned and detained pending trial by the Federal Court, will always serve his Federal sentence in Federal prison when there are no other State charges and the defendant was not in State custody when initially arraigned and detained by the Federal Court.

Second, a defendant who is arraigned and detained pending trial by the Federal Court, and later is arraigned and detained pending trial by a State Court will be under Federal primary jurisdiction and serves any Federal sentence in Federal prison before serving any State sentence of imprisonment in State prison.

Third, the State will have primary jurisdiction over a defendant and the defendant will serve any State prison term first when either:

(1) The defendant was arraigned and detained pending trial in State Court, before appearing in Federal Court

(2) The defendant was in State custody for a violation of probation or parole before appearing in Federal Court; or

(3) The defendant was already serving a sentence of imprisonment in a State prison before first appearing in Federal Court.

In these situations, the State has primary jurisdiction over the defendant and the defendant will first complete the State sentence of incarceration before being transferred to Federal prison to complete any Federal sentence of incarceration.

For example, a defendant is arrested by local or State law enforcement for a felony and arraigned and detained pending trial by a State court judge. The defendant is in State custody when the Federal Government obtains the defendant from the State jail and brings the defendant for arraignment before the Federal Court on a Federal criminal charge. In that case, the State has primary jurisdiction because the State placed the defendant in custody before the Federal Government. After the defendant completes the Federal criminal case and is sentenced, the defendant returns to finish any remaining term of incarceration owed to the State. After completing the State sentence, the Federal defendant would then be sent to the Federal prison to complete any remaining term of incarceration from the Federal sentence.

This example is straightforward. Your situation may be much more complex to unravel. Understanding how Federal criminal charges and State criminal sentences interact and is essential for you to make informed decisions about your pending Federal criminal charges. Ensure that you talk with a Federal criminal defense lawyer who knows the answers to your questions.

If you or a loved one are facing Federal or State criminal charges and need to know how to move forward with your Federal and State criminal charges, contact Larry Elmen, Esq. at Elmen Law Firm P.C. to schedule an initial consultation. We will work with you to ensure you understand the full impact of Federal and State criminal sentencing laws before it is too late.


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