Suspended sentence: the offences that are left out

It is the court's power not to execute the prison term it imposed and instead leave the person on probation under conditions. It does not apply to every offence: the law lists which ones are expressly excluded from the benefit.

The law frames it the opposite way to how people search for it: instead of saying who qualifies, it says what is left out. The Court of First Instance may suspend the effects of a prison sentence in every felony case and every misdemeanour arising from the same facts or the same transaction that is not on the exclusion list. The enrolled text also conditions suspension on requirements it lists as "(1) … (2) … (3) … (4) …" without spelling them out, so this guide does not describe them.

• That the offence is not in any of the exclusion categories (a) through (i) of Article 2, as Act 85-2026 left it.Verified against the official source
• That, at the time of sentencing, all the requirements the article lists are present. The enrolled text prints them abbreviated, so we do not reproduce them.Verified against the official source

• The article publishes no document list. Suspension is resolved inside the criminal case itself, at sentencing.

1. 1

   Step 1: Check the list of excluded felonies

   Subsection (a) excludes: murder; lascivious acts when the victim is under fourteen; sexual assault; spousal sexual assault; rape; sodomy; incest; kidnapping; aggravated kidnapping; child pornography; burglary; robbery; arson; negligent homicide; bribery; offering a bribe; undue interference with government operations; unlawful appropriation of public property or funds; unjustified enrichment; illicit enrichment; undue influence; and embezzlement of public funds, as defined in the Penal Code or any law replacing it, or any other felony against public function or public funds.

2. 2

   Step 2: Check whether a firearm is involved

   There are two ways a weapon closes the door. Subsection (b) excludes a specific list of 2020 Weapons Act felonies: Articles 2.16, 6.02, 6.03, 6.04, 6.05, 6.08, 6.09, 6.10, 6.12, 6.17, 6.20 and 6.21. And subsection (d) excludes, more broadly, any felony in whose commission the person used or attempted to use a firearm, whatever that offence is.

3. 3

   Step 3: Check explosives, drugs and traffic

   Subsection (c) excludes felonies arising from the illegal possession or use of explosives or of substances to make explosives or detonators, devices or mechanisms prohibited by the Explosives Act. Subsection (e) excludes Articles 401 (prohibited acts), 405 (distribution to persons under eighteen), 411 (employment of minors) and 411a (introducing drugs into schools or institutions) of the Controlled Substances Act. Subsection (h) excludes felonies under subsections (b) and (c) of Article 4.02 and subsections (B) and (C) of Article 5.07 of the Vehicles and Traffic Act. And subsection (i) excludes anyone convicted of violating Articles 7.01, 7.02 or 7.03 of that same law who, as a consequence, caused serious bodily harm or death to another human being.

4. 4

   Step 4: Do not overlook attempt and connected offences

   Subsection (f) extends the exclusion to attempt or cooperation in any of the offences excluded in subsections (a) through (e). And subsection (g) excludes, when committed in connection with an offence under subsection (a): preventing or persuading a witness not to appear; perjury; fraud or deceit regarding witnesses; threatening or intimidating witnesses; conspiracy, threats or attempts against justice-system officials or their relatives; destruction of evidence; preparing false writings; and filing false writings.

5. 5

   Step 5: Cases the law does allow to be suspended

   The article also names situations where the door stays open. The court may suspend the sentence in any misdemeanour arising from the same facts or the same transaction that also gave rise to a sentence for a felony that is not among the excluded ones, and this includes where the person was found not guilty of that felony or the felony was reduced to a misdemeanour and convicted as such. For misdemeanours not arising from the same facts as a felony, the court may also suspend where the sentence is imprisonment only. And it may suspend in the case of negligent homicide in its misdemeanour form that was not caused while driving under the influence.

Inside the criminal case itself, before the Court of First Instance, at sentencing. It is not a separate application with its own file.

• Looking for a list of who qualifies: the law is written the other way round, listing the offences that are excluded.
• Going only by the offence's name: subsection (d) excludes any felony in whose commission a firearm was used or attempted to be used, whatever the offence.
• Forgetting attempt: subsection (f) also excludes attempt or cooperation in the offences of subsections (a) through (e).
• Believing that staying off the list is enough: the article also requires conditions the enrolled text does not spell out.
• Assuming all negligent homicide is excluded: the article allows suspension in its misdemeanour form when it was not caused while driving under the influence.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov