Can a state sentence run concurrent wiith a federal sentence even though the federal time has already been served? 32 Answers as of July 11, 2013

My boyfriend was just released from federal prison. He had a pending state case that was supposed to be taken care of at the same time as the federal case. For some reason his attorney didn't take care of it in a timely manner and now he's awaiting trial in state court. Is it possible for the state judge to take into consideration the federal time is the charges are similar?

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Thomas J. Tomko Attorney At law
Thomas J. Tomko Attorney At law | Thomas J. Tomko
If the federal sentence is served, then there is nothing to run concurrent. If you are talking about credit for time served which is applicable in the State case, then you would need to consult your attorney. If there were an active warrant in the State action, then perhaps there is an argument for credit. If on bond in the state case, or if not arraigned yet, then perhaps not.
Answer Applies to: Michigan
Replied: 6/27/2011
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
The state case which has not yet been sentenced cannot run concurrently with a sentence which has been already served.
Answer Applies to: Kansas
Replied: 6/24/2011
Michael Breczinski
Michael Breczinski | Michael Breczinski
This would depend on the State. the prosecutor, the defense attorney and the judge. It should be taken into account when drafting a deal in the case or at sentencing after a trial.
Answer Applies to: Michigan
Replied: 6/24/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
YES! Where is this case pending? Does your boyfriend have a lawyer? If not call me now, I have done this twice in the last 30 days, most District Attorney's Offices don't even know it can be done and it is perfect the Feds gave your BF all the info on release it is in his packet and he needs to file a claim under the Interstate Compact on Detainers Act. ASAP. I handle cases in Collin County and will go to Dallas County or Denton County for Criminal Matters. I would go outside that area but I charge for travel time if I leave this area and most clients opt for local.
Answer Applies to: Texas
Replied: 6/23/2011
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
He can take it into consideration by a lesser sentence but can't run a sentence concurrently to a sentence already served.
Answer Applies to: California
Replied: 6/23/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    A sentence can either run consecutively or concurrently. The attorney in State Court is usually different from the attorney in Federal Court, especially if they are public defenders. They should have agreed to work together and try to get as concurrent sentence, but that is not always possible.
    Answer Applies to: New York
    Replied: 6/23/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Probably not. Usually concurrent time must be imposed at the time of sentencing on two charges. In other words, time served in one court system does not relate back to the first conviction. The worst part is, under the Doctrine of Separate Sovereigns, the state charge doesn't even violate Double Jeopardy. Whatever you do, make sure that the attorney on the state charge takes a look at the Statute of Limitations (SOL) for the state crime and checks to see if any situation would have tolled the SOL. It may also be advisable for your friend to make a super sweet plea deal if he gets a good lawyer and a cool prosecutor. In the eight years I prosecuted crime, I tried to be fair and reasonable. If someone did time in one system for essentially the same crime, I would have at a minimum offered a no-jail plea. It is possible that a fair-minded state Prosecutor would have a heart too.
    Answer Applies to: Washington
    Replied: 6/23/2011
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    Sometimes it is possible, but it depends if he was served his warrant/hold/detainers while in federal prison. Also, these calculations are ultimately up to the Missouri Dept of Corrections. Talk to your lawyer and see if you can work something out. If they won't give time served, your lawyer may be able to negotiate for a lesser sentence since your bf has already done time.
    Answer Applies to: Missouri
    Replied: 6/23/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I would recommend that he retain an experienced criminal lawyers as soon as possible. Even if it can't run concurrently, it will be up to the judge to decide whether to take it into account. Good luck!
    Answer Applies to: Georgia
    Replied: 6/23/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Of course not. Not only will the state court DA and judge not show sympathy or take into account the federal time in a positive manner, they will treat it as a prior for enhancement of sentencing on the state charges.
    Answer Applies to: California
    Replied: 6/23/2011
    Edward  D. Dowling IV Attorney at Law
    Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
    The state court can take into consideration the time served for the Federal charges but is not required to. Your previous attorney should have tried ( maybe he did but the prosecutors and the judges would not agree to it ) to get the state charges dismissed as part of the federal charges. You should hire an attorney.
    Answer Applies to: New York
    Replied: 6/23/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Jacob T. Erickson
    It is, but he will not necessarily get credit towards his State offense for the time he spent in Federal prison.
    Answer Applies to: Minnesota
    Replied: 6/23/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    No. State and Federal systems are independent of one another. He can be credited with time served in the State system, however, by agreement with the prosecutor.
    Answer Applies to: Minnesota
    Replied: 6/23/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    Although it is possible for the state judge to run the sentence concurrent with the Federal charge, there is no legal requirement upon him to do so. These were two separate crimes, and your friend was being held in custody for the federal case, not the state case.
    Answer Applies to: Illinois
    Replied: 6/23/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Yes. He might be sentenced to "time served". But, if he's going to trial then I suspect that he is not being made that offer.
    Answer Applies to: New York
    Replied: 6/23/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    The judge can take into consideration whatever he wants. But it would be very unusual to run this time concurrent with Federal time that has already been served.
    Answer Applies to: Washington
    Replied: 6/23/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    A state sentence can run concurrent with a federal sentence. However, there has to be a sentencing for this to happen.If your boyfriend was never sentenced by the judge in the state case, there was no sentence, therefore, nothing to run concurrent with the federal sentence. Additionally, if your boyfriend was on bond the entire time that his federal sentence was served he technically never served any time on the state sentence.The state sentencing judge does have discretion to consider time served in federal custody in the state sentencing but does not have to.
    Answer Applies to: Alabama
    Replied: 6/22/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    if the state judge gives you credit for the federal time served, yes but I would not count on it.
    Answer Applies to: Florida
    Replied: 6/22/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    While it is possible, it's very unlikely, unless the ADA and the Judge agree to it. Hire a very good attorney to seek such relief. Good luck.
    Answer Applies to: New York
    Replied: 6/22/2011
    McWhirter Law Firm
    McWhirter Law Firm | Barry McWhirter
    Yes, it is possible.
    Answer Applies to: Tennessee
    Replied: 7/11/2013
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    They do not have to as the federal and state government are seen as different entities the rules of double jeopardy wouldn't apply. What I would highly suggest is getting him an attorney skilled at handling such cases and such situations, it may be possible to argue the prosecution is not proper or appropriate if the case meets certain criteria. If you're interested in hiring an attorney contact our office to discuss this case further.
    Answer Applies to: New York
    Replied: 6/22/2011
    Frances R. Johnson
    Frances R. Johnson | Frances R. Johnson
    No. Whether the DA is willing to negotiate a deal based upon the federal proceedings is another matter.
    Answer Applies to: Colorado
    Replied: 6/22/2011
    The Chastaine Law Office
    The Chastaine Law Office | Michael Chastaine
    While the time can not run concurrent to a sentence already served, the court can take the Federal sentence in consideration in the state case.
    Answer Applies to: California
    Replied: 6/22/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    Maybe. It is hard to get state and federal sentences to run concurrently. The judge probably has the power to order it, and it may also be possible to seek post-conviction relief, arguing that the attorney should have gotten into state court promptly, failure to do so was Constitutionally ineffective, and the remedy is a concurrent or shorter sentence. Good luck.
    Answer Applies to: Oregon
    Replied: 6/22/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    Federal charges will not run concurrently, state may. So if in state custody first then federal always runs consecutive. If fed sentence is served state court may but is unlikely to sentence concurrently. Boyfriend should be talking to attorney.
    Answer Applies to: New Hampshire
    Replied: 6/22/2011
    Attorney at Law
    Attorney at Law | Steven C. Bullock
    With the information you have provided, it would be rare for a state court judge to credit the federal time for any state prison sentence.
    Answer Applies to: Michigan
    Replied: 6/22/2011
    Fitzpatrick, Mariano, & Santos, PC
    Fitzpatrick, Mariano, & Santos, PC | Raymond J. Savoy
    A judge has the authority to consider any sentence but it would be unusual to use federal time for a state offense.
    Answer Applies to: Connecticut
    Replied: 6/22/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    Its possible if: 1) he had bail set while doing the federal time; or b) the judge will sentence him nunc pro tunc to the day he was jailed on the federal charge.
    Answer Applies to: New York
    Replied: 6/22/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    If he is convicted or pleads guilty to the state offense, he will be given credit for any time in which there was a detainer lodged against him while in federal custody. If there was no detainer against him, then he gets no credit. The judge is always free to give a lesser sentenced because of the fact that he served time on a related case in federal custody. The judge can consider most anything in sentencing.
    Answer Applies to: Texas
    Replied: 6/22/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    The answer to your question would depend on what the state judge's sentencing discretion is for the charge your boyfriend faces. Over the years, legislatures have taken many sentencing decisions away from judges and mandating minimum sentences and the like. If the judge has the authority to take into consideration the fact that your boyfriend did x number of months in federal prison already, he or she can sentence him accordingly. Bear in mind, however, the more often way things work is that the person does a state sentence and then they get shipped to do a federal sentence consecutively to the state sentence.
    Answer Applies to: Oregon
    Replied: 6/22/2011
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