Sentencing for subsequent conviction
Sentencing for Subsequent Conviction
The regulation on sentencing in the event of a subsequent conviction explains how a court proceeds when someone is subsequently convicted for another offense. The court hypothetically determines the penalty that would have been imposed if all offenses had been tried together, deducts the penalty already imposed, and, if applicable, pronounces an additional penalty. Typical problems arise with separate proceedings, conditionally suspended sentences, and unclear periods of imprisonment served. Therefore, the defense must secure enforcement and judgment copies early to prevent additional burdens.
§ 40 StGB stipulates that an additional penalty shall be assessed in such a way that the sum of all penalties corresponds to the penalty that would have been imposed if tried jointly.
Principle
In the event of a subsequent conviction, the court must take into account the penalty already imposed. It first determines the hypothetical total penalty for all offenses, deducts the previous penalty, and determines the additional penalty from the remaining amount. If the hypothetical total penalty does not exceed the previous penalty, the court refrains from imposing an additional penalty.
Significance
This provision prevents double jeopardy and upholds proportionality. It ensures that a person is not punished repeatedly and disproportionately for comparable offenses merely because the proceedings were separated in time or organizationally. For those affected, this can mean that sanctions imposed later are entirely or partially waived.
Practical Application
The court determines the hypothetical total penalty by incorporating the general sentencing rules. It considers mitigating and aggravating circumstances, values and damage amounts, as well as, if applicable, periods of pre-trial detention. Errors in determining the period served or in applying deadlines provide grounds for legal remedies.
Key Rules
- Hypothetical Calculation of the Total Penalty: first determine the hypothetical penalty if tried jointly.
- Deduction of the Previous Penalty: deduct the penalty already imposed from the hypothetical penalty.
- No Additional Penalty if No Additional Burden Arises: if the total penalty remains the same or lower, the additional penalty is waived.
- Conditionally Suspended Sentences: deadlines usually only begin with the legal force of the decision.
- Aggregation of Values and Damage Amounts: the relevant aggregation rules must be observed during assessment.
Practical example
Courts impose additional penalties if the hypothetical total penalty exceeds the previous penalty; in other cases, they waive an additional penalty. Decisions often show that precise enforcement records and the documentation of pre-trial detention periods are crucial.
Relationship to Related Provisions
§ 40 StGB supplements the rules on additional penalties in § 31 StGB and interacts with the general sentencing rules. In practical application, the court must transparently present the qualifications, the concurrence of offenses, and the aggregation of values so that the decision remains reviewable on appeal or revision.
Your Benefits with Legal Assistance
A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.
Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.
Our law firm:
- examines whether and to what extent the accusation is legally sustainable,
- accompanies you through investigation proceedings and main hearing,
- ensures legally sound applications, statements, and procedural steps,
- assists in defending against or settling civil law claims,
- protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.
