A "stipulated sentence" is a term used in criminal law to indicate that the parties have agreed upon a particular sentence in a criminal case. But there is a lot of confusion amongst criminal defendants about what this term means—and perhaps more importantly, what it does not mean. I'd like to clear up some of that confusion.
First a disclaimer. This analysis only applies to criminal cases in Nevada, and more specifically, Las Vegas and Clark County (Southern Nevada). Legal "terms of art" are sometimes used differently in other jurisdictions, and I don't pretend to know anything about cases that occur outside of the jurisdiction I practice in.
STIPULATED SENTENCE DEFINED
A stipulated sentence comes into play when a plea bargain is reached in a criminal case. It simply means that the defense (you and your attorney) and the prosecution (the district attorney, city attorney, or other government prosecutor) have agreed that a particular sentence is appropriate in a particular criminal case. The parties are recommending that the judge, whose job it is to impose sentence in a criminal case, follow the stipulated sentence. It is a joint recommendation to the judge for a particular sentence, agreed to between the defense and the prosecution. And that is all a stipulated sentence is.
STIPULATED SENTENCE VERSUS CONDITIONAL PLEA
The reason I am writing this article is because criminal defendants are commonly misinformed about stipulated sentences. They tend to think that a stipulated sentence is binding upon the court. It is not. When I say "binding upon the court," what I mean is, criminal defendants tend to believe that a stipulated sentence ties the hands of the judge and prevents him from imposing any other sentence, for better or worse. This is not true.
Let me make this clear. Even when you have entered into a stipulated sentence with the prosecution, the court doesn't have to follow that recommendation. So for instance, let's say you are charged with multiple counts of trafficking in a controlled substance. You hire me as your defense lawyer and I negotiate the case down to one count of Possession of a Controlled Substance with Intent to Sell. In the written guilty plea agreement, the District Attorney agrees not to oppose probation, but retains the right to argue as to how long probation should last and what the particular terms of probation should be. Does the judge have to sentence you to probation? No! The judge has the discretion to impose a sentence (within the limits of the criminal statute that you pled to), regardless of any "stipulated sentence" or "joint recommendation."
But is there any way to prevent the judge from throwing out your deal and sentencing you however he wants? Yes. Sort of. Through the use of a conditional plea. I'll explain that below. But first I'd like to make an important point about stipulated sentences. Even though the judge technically doesn't have to follow the stipulated sentence, he almost always will. All judges are different. In some courtrooms, the judge will always impose the stipulated sentence—even if he disagrees with the joint recommendation and thinks you shouldn't have gotten such a good deal! Any why is that? Because if judges didn't follow stipulated sentences, then it would be impossible to predict the sentence a criminal defendant would get after a plea deal, there would be no way to reasonably prevent or limit potential incarceration. Therefore there would be far less of an incentive to deal cases, and the courts' dockets would be overflowing with unresolved cases that would have to go to trial. The court system relies upon the fact that most cases end in plea negotiations, and so most judges are very careful not to undermine the system by blowing up stipulated deals. Still, not all judges think this way. And that's why it's important to choose a defense lawyer who practices in front of many different judges—because an experienced lawyer will be able to tell you how likely your judge is to follow any potential stipulated sentence.
As stated above, a stipulated sentence is not a "binding plea" and does not technically tie the judge's hands when he sentences a criminal defendant. There is another type of plea, which is much rarer than a stipulated sentence, which does tie the judge's hands. Sort of. A conditional plea is a type of guilty plea agreement where the defendant pleads guilty, but only on the condition that the judge sentences the defendant according to the parties' stipulated sentence. But there's a catch. A conditional plea is not foolproof, because if the judge doesn't want to follow the stipulated sentence, he can simply choose not to accept the guilty plea at all. And then the defendant has to either go to trial or come up with a new guilty plea that the judge might consider following.
One problem with conditional pleas is that judges don't like them. They don't like being told that they don't have discretion in imposing sentence. Many times, the criminal defendant may be better off going with a stipulated sentence (where the judge technically has discretion in sentencing but most likely will just follow the joint recommendation) for this reason. In general, it is never a good idea to get on the judge's bad side. Another problem with a conditional plea is that the prosecution doesn't frequently agree to them. A guilty plea is a mutual agreement between the defense and prosecution. So if the prosecution won't agree to a conditional plea (or a stipulated sentence, for that matter) then you can't force them to do so.
The bottom line is that stipulated sentences are often useful in limiting criminal penalties. Often, they can limit incarceration or prevent it altogether. I have helped many criminal defendants in cases where the judge stated on the record that he thought the defendant was getting too good of a deal, but that he would follow the stipulated sentence anyway because that's what the parties agreed to. But you should know that a stipulated sentence is no guarantee of a specific outcome. Every felony or gross misdemeanor plea written by the Clark County District Attorney in Las Vegas states this explicitly: "I understand that if my attorney or the State of Nevada or both recommend any specific punishment to the Court, the Court is not obligated to accept the recommendation."
Nothing can fully remove the judge's sentencing discretion. No attorney can guarantee a particular sentence. But that doesn't mean a good defense attorney can't make accurate predictions about the outcome in the vast majority of cases. Success in criminal defense is often about managing probabilities. Specifically, often a criminal case comes down to evaluating the chance of acquittal at trial versus the likely outcome at sentencing after a plea agreement. So a criminal defense attorney can't guarantee an outcome, but a good one can give you the best odds.