Anaheim, CA asked in Criminal Law for Arizona

Q: Is it illegal for a prosecutor to be harsher in sentencing because he is angry a person previously beat a case at trial?

2 years ago my husband was arrested with 3 ounces of meth and a weapon.He took the case to trial and all charges were dismissed due to the arresting officer faulty testimony. Last October he was pulled over again and this time he was arrested for marijuana possession.He was put on standard probation and in December arrested again after probation and local police did a compliance search of his home and found various items that violated his terms of probation.He sits in jail for 6 months because he wouldn't sign the plea offered. Long story short the prosecutor stated to his lawyer that he was going to send him to prison because he was not very pleased with my husband having that case dismissed at wondering if this okay for him to hold a previous trial against my husband In this new case and push for harsher sentencing because he was unhappy with an outcome?

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1 Lawyer Answer
Stewart Salwin
Stewart Salwin
  • Criminal Law Lawyer
  • Scottsdale, AZ
  • Licensed in Arizona

A: Assuming that somebody is convicted of a crime, it is up to the judge to impose the sentence. Depending on the defendant's criminal history, there will be a sentencing range that the judge must follow. Within that sentencing range, the defense attorney and the prosecutor can both try to persuade the judge what the appropriate sentence should be. Both sides can bring up a number of factors. If the prosecutor tells the judge that he is angry with the defendant because he lost to him in a previous trial, that won't be very persuasive. A prosecutor can mention that the defendant has an arrest history, even if those arrests did not lead to a conviction. Being on probation at the time the offense was committed will drastically increase the sentencing penalties under Arizona sentencing law. Somebody who is convicted at trial under those circumstances will be facing a mandatory DOC term.

But if what you are asking, is whether there is anything that you can do to force the prosecutor to be more lenient on the defendant, then I'm afraid to say there really isn't a legal mechanism to do that. If there is prosecutorial misconduct, then that could be a different story. But that is a very serious accusation, and a discussion of that would best be left to the defense attorney, who knows the facts of the situation better.

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