What is a subsequent offense?
A subsequent offense is a crime that a person has been convicted of before. It happened subsequent or after your first conviction.
A subsequent offense does not always mean “second offense.” It could be a third, fourth, or any number offense after the first. The paper charging you with a crime (complaint, citation, or indictment) will indicate if you are being charged with a subsequent offense.
If I am convicted twice, is it assumed that the second offense was a subsequent offense?
No. If you are convicted of the same crime on two separate occasions the court is not allowed to assume when it sentences you the second time that you are a subsequent offender. The state must prove beyond a reasonable doubt that before the accused committed the second crime they had previously been convicted of the first one.
How is a subsequent offense proved?
In Massachusetts, proving a subsequent offense means proving beyond a reasonable doubt that the person who was convicted of the underlying crime is the same person who was convicted on the first occasion. If the government does not meet its burden, a person cannot be convicted of the underlying crime as a subsequent offender.
The government usually meets its burden of proof by offering certified records into evidence. The record of a person’s conviction is a public record. Courts almost always allow these types of records into evidence. However, that does not mean they cannot be challenged. Sometimes clerks—who are responsible for maintaining the case docket, or official record of the proceedings of a case—make a mistake. A good criminal defense attorney will closely examine any records showing a subsequent offense to ensure they are fair and accurate.
What is the penalty for a subsequent conviction?
If a person is convicted of a subsequent crime, the penalty will depend on the crime. For example, for the crime of assault and battery on a family or household member:
- First Offense: up to 2 ½ years in the House of Correction and/or a fine of up to $5,000
- Subsequent: up to 2 ½ years in the House of Correction or up to 5 years in state prison
As you can see, the punishment for the subsequent offense is worse. A person convicted of second offense assault and battery on a family or household member could be sentenced to state prison. A person convicted of only their first offense cannot be sentenced to state prison. The possible punishments for subsequent offenses is always worse.
Some crimes do not say what the subsequent penalty is. This gives judges discretion to impose a sentence. In these cases, judges in Massachusetts often turn to the Massachusetts Sentencing Guidelines. The Massachusetts Sentencing Guidelines, which can be viewed here, give judges instructions on how to sentence people convicted of crimes when the laws punishing these crimes do not require a particular sentence to be imposed. The Guidelines are not law but they are a very well-regarded source of legal authority in Massachusetts. A good defense attorney will be very familiar with the Sentencing Guidelines and use them to benefit their clients.
Does double jeopardy protect me from being convicted of a subsequent offense?
A subsequent offense is not the same as double jeopardy. The Fifth Amendment of the Constitution protects people from double jeopardy. Double jeopardy means being prosecuted for the same crime twice. A subsequent offense is not double jeopardy because the facts of the crime are different. For example, if a person prosecuted for an OUI occurring on July 1 is then prosecuted for an OUI occurring on September 1, the second prosecution for the subsequent offense is not double jeopardy because the OUIs occurred on two separate days.
This does not mean double jeopardy is not a defense in some cases. It can be when a person is charged with two offenses that are very similar and based out of the same facts.
IF YOU OR A LOVED ONE ARE CHARGED WITH A SUBSEQUENT OFFENSE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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