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The preliminary hearing sounding docket and/or the preliminary hearing is the first opportunity in Oklahoma's felony criminal procedure process to plea the case. Prior to the Preliminary Hearing the district attorney will typically give a defendant's attorney a recommendation. (Frequently called a "Rec") Once a criminal defense attorney has received the discovery and had and opportunity to discuss the discovery and the district attorney's "Rec" with their client the attorney and the client will need to make a decision on whether to have a preliminary hearing or accept the district attorney's offer. To understand the thought process that experienced criminal defense lawyers use to make these decisions read Analyzing Criminal Cases.
Recommendations have their own language. A typical recommendation would be a “2 PSI”. The 2 in “2 PSI” refers to the term of years. That means that your client enters a plea of guilty and a Pre-Sentence Investigation is performed. Based upon that PSI the sentencing judge will sentence your client to a 2 year deferred sentence, a 2 year suspended sentence or 2 years in prison. Sometimes a district attorney will offer a deferred sentence to your client or a suspended sentence to your client at the preliminary hearing level. This also may be referred to as a “straight deferred” or a “straight suspended”.
A deferred sentence means that your client enters a plea of guilty, the judge accepts the plea but the judge does not find your client guilty. The judge defers the sentencing of your client for a period of time and if your client meets all of the conditions required of him or her; the judge allows your client to withdraw their plea and the case is dismissed and expunged. Please note the Expungement under a deferred sentence will still show the arrest it will just not show that your client was found guilty or that your client entered a guilty plea. (This is different and not as good as an Expungement under Title 22 O.S. §18) If your client completes a deferred sentence he or she will not be a convicted felon. The maximum term of a deferred sentence is 5 years. (See Title 22 O.S. §991 c, paragraph a)
A suspended sentence means your client is found guilty and is a convicted felon. Your client is sentenced to prison then the sentence is suspended upon your client complying with the rules and conditions of probation. As long as your client does what they are supposed to do they will not go to prison.
A split sentence is a sentence that requires your client to go to prison for a period of time and then to be on probation for a period of time. You will hear this referred to as “2 in and 3 out” or whatever the term of years that are involved.
There are many factors to consider when evaluating the case. These items should be discussed with and explained to your client. Is the crime your client charged with an 85% crime; meaning your client must serve at least 85% of the time before being released? (See Title 21 O.S. §12.1 and 13.1) Does the crime currently require your client to register as a sex-offender. (See Title 57 §581; I say currently require because the sexual offender registration laws are not considered Ex Post Facto as to punishment and could change even after your client pleads.)
If your client already has 2 felony convictions there is a statutory prohibition against that individual receiving a suspended sentence unless the state “dismisses” or “strikes” the 2 nd page. Some offenses have prohibitions against receiving deferred sentences.
If you and your client desire to accept the district attorney’s offer you will need to complete a “Waiver of Preliminary Hearing”. Some cases can be resolved or pled at the preliminary hearing level “on the 3 rd Floor” and some cases must be resolved at the district court level.
All PSI recommendations must be resolved at the District Court level.
I try to respond to all inquires as quickly as possible. If you need immediate assistance you can call my office (918) 582-1313 or my cell phone (918) 230-9513. If you are in need of emergency assistance feel free to call my cell phone anytime either day or night.