If the defendant enters a plea or is found guilty at trial, the actual punishment is determined by the judge at a sentencing hearing.

The judge is required to consider the severity of the offense, the character of the defendant, and the need to protect the public.  In certain cases, such as drunk driving, the judge will rely on sentencing guidelines, which guide him in determining a range of time the defendant should serve for committing that crime.

In certain felony cases, the Department of Community Corrections prepares a pre-sentence report.  That report contains facts about the defendant and provides a recommendation to the judge for an appropriate sentence.  The recommendation isn’t binding on the court, but it usually weighs heavily.  Sometimes it’s a good idea for the defense to prepare a response pre-sentence report that points out the defendant’s good qualities and recommends a more lenient sentence.

At the sentencing hearing, the defense will offer mitigating factors and reasons why the defendant should be sentenced to the lowest possible term.  Family circumstances, health reasons, cooperation with authorities, a confession, and acceptance of responsibility are usually positives considered by the judge.  A quality sentencing argument can mean the difference between probation and prison.