A suspended sentence is where a judge sentences you to jail or prison time, but then delays imposing the sentence in order to let you serve time on probation.
- If you complete probation successfully, the judge typically dismisses the case without placing you in custody.1
- If you violate probation, the judge can impose the original sentence that was suspended (which may include jail or prison time).2
Note that a suspended sentence and probation are two different things. A suspended sentence is a type of court-imposed penalty for a crime. Probation, though, is a type of alternative to jail where you serve your sentence in the community under the supervision of the judge or a probation officer.
A suspended sentence typically means that a conviction will remain on your criminal record. A different outcome occurs with a deferred entry of judgment, stayed adjudication, or deferred sentence that does not result in a guilty conviction.
What happens when a sentence is suspended?
Consider, for example, that you are convicted of a first-time misdemeanor DUI. The criminal laws of most states say that this offense carries a maximum jail sentence of six months or one year.
Assume the judge imposes a sentence of six months, but then suspends it, and places you on a period of probation with a term of attending DUI school.
- If you successfully complete the school, the judge will likely dismiss the sentence, and you will not have to go to jail.
- If, however, you fail to attend classes after a period of time, the judge has the discretion to “un-suspend” the sentence and send you to jail for the full six months.
When do judges grant a suspended sentence?
Most jurisdictions give judges the discretion to grant or deny suspended sentences in the vast majority of criminal cases.
In deciding whether or not to grant a suspended sentence, criminal courts will consider some of the following:
- your criminal record and criminal history (whether you are a repeat offender),
- the seriousness of the charges (such as whether they involved violence), and
- whether you are a flight risk or a safety risk to the community.
If you and the prosecutor agree to a plea bargain where you get a suspended sentence, the judge will usually sign off on it. Note that suspended sentences are typically not granted in cases involving serious crimes (such as murder).
If you receive a suspended sentence, it is critical for you to consult with a criminal defense attorney or law firm. The lawyer or firm will provide legal advice to help ensure you
- successfully complete probation and
- stay out of jail or prison.
Keep in mind that most conversations with a lawyer are protected by the attorney-client relationship. This means potentially embarrassing information can stay out of the public domain.
What does a 10-year sentence with 5 suspended mean?
In this scenario, a judge sentences you to a 10-year jail or prison term. Though the judge then imposes five years in confinement and allows you to serve the remaining five years on probation.
- The five years in confinement is often referred to as the “execution of a sentence” or the “executed part” of the sentence.
- The five years on probation is often referred to as the “unexecuted part” of the sentence.
If you violate a term of the probation within the second half of the 10-year sentence, you will go back to jail or prison for the remainder of the sentence.
This type of sentence arrangement is often referred to as a “split sentence.”3
Suspended Sentence vs. Probation
A suspended sentence is a punishment ordered by the court that gets waived so long as you fulfill all the terms of your probation.
Meanwhile, probation is an alternative to jail in which you serve out a sentence or part of the sentence (for instance, two years) in the community as opposed to behind bars.4
You must comply with certain terms and conditions while on probation. Depending on the type of probation, you must meet periodically with the judge or a probation officer to report on compliance.5
Ten examples of probation conditions include that you:
- perform community service,
- attend a DUI school,
- complete rehab for alcoholism or drug addiction,
- submitting to random drug tests,
- take courses such as certified batterers’ intervention, anger management, or sexual offender counseling,
- adhere to curfews,
- paying off all fines, court costs, probation fees, and restitution,
- residing at a specific address and avoiding certain locations,
- seek gainful employment and maintaining it, and/or
- not violate any other laws.
If you violate probation, then the judge can un-suspend your suspended sentence.
Suspended sentences help alleviate jail/prison overcrowding.
Does a suspended sentence mean a criminal record?
Yes. A suspended sentence usually stays on your criminal record.
Note, though, that a deferred sentence will usually not result in a criminal record. A deferred sentence is when you plead guilty to a crime, but the judge
- delays entry of the plea and
- places you on probation.
If you successfully complete probation, then the judge changes the initial plea of guilty to not guilty.
However, if you violate probation, then the judge may enter the guilty plea. In this event, the conviction will go on your criminal record.
What is the law in California?
California law generally follows the rules and discussion outlined above.
Note that when a California judge grants probation, they are supposed to indicate whether:
- imposition of a sentence is suspended (referred to as “ISS”), or
- the sentence is imposed, but the execution of the sentence is suspended (referred to as (“ESS”).6
If ISS, then the judge puts you on probation without giving a sentence. If you then violate probation, the judge can either:
- reinstate probation (usually with harsher conditions), or
- impose any sentence that the judge could have at the time of the probation order.
If ESS, a judge gives a sentence at the time of ordering probation. The judge, though, suspends its execution.
If you later violate probation, the judge can either:
- reinstate probation, or
- impose the sentence that was suspended (unlike with an ISS, the judge is not free to impose any sentence authorized by law).
Keep in mind that there are two types of probation in California. These are:
- misdemeanor (or summary) probation, and
- felony (or formal) probation.
Informal probation is granted in misdemeanor cases while formal probation is given in felony cases.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Adult Probation Parole and Suspended Sentence – Journal of American Institute of Criminal Law & Criminology.
- Suspended Sentence and Adult Probation – Texas Law Review.
- Suspended Sentences – Current Legal Problems article about how suspended sentences work and their utility.
- Suspension of Execution of Sentence: An Examination of Judicial Power – Tulsa Law Journal.
- Suspended Sentences and Freestanding Probation Orders in U.S. Guideline Systems: A Survey and Assessment – Law & Contemporary Problems.
Legal References:
- Black’s Law Dictionary, Sixth Edition – “Suspended Sentence.” Other terms are “postponed sentence” or “delayed sentence.” See, for example, People v. Armas (Cal.App. 2024) 350.
- See same. See also Richards v. Crump 194 S.E.2d 575 (1973).
- See, for example, Black’s Law Dictionary, Sixth Edition – “Split Sentence.”
- Black’s Law Dictionary, Sixth Edition – “Probation.”
- See, for example, State v. Fields, 686 P.2d 1379 (1984).
- See, for example, California Penal Code 1203 PC. See also California Rules of Court, Rule 4.433 – Matters to be considered at the time set for sentencing.
