Prepared from day one of the proceedings · Madrid and Alicante
A prison sentence does not necessarily mean entering prison. Articles 80 to 87 of the Criminal Code allow the execution of sentences of up to two years to be suspended where the convicted person has no record and certain conditions are met.
In brief. It is the institution that most worries anyone facing a first conviction, and it is prepared from the first day of the proceedings, not after the judgment. Two years exactly is suspendable; two years and one day is not: that is why the defence fights every month of penalty and every mitigating circumstance throughout, and why the civil liability must be paid or credibly committed.
Articles 80 to 87 allow the execution of prison sentences of up to two years to be suspended where the convicted person is a first offender and certain conditions are met, chief among them that the civil liability is satisfied or credibly committed. The strategy therefore starts long before the judgment: steering the penalty below two years through mitigating circumstances or a negotiated judgment, documenting a payment plan before the court, and requesting the suspension in the judgment itself or immediately upon finality, with local ties, work and treatment accredited for the favourable prognosis.
Beyond the ordinary route there are three doors that are often forgotten: the exceptional suspension of Article 80.3 for non-habitual offenders with records, conditioned on reparation and a community measure; the suspension of any sentence, without limit, for very grave and incurable illness (Article 80.4), processed urgently with interim non-admission measures; and the drug-dependency route of Article 80.5, which raises the ceiling to five years conditioned on treatment.
| Route | Article | Ceiling | Condition |
|---|---|---|---|
| Ordinary | 80.2 | 2 years | First offence and civil liability addressed |
| Exceptional | 80.3 | 2 years | Non-habitual records; reparation plus measure |
| Grave illness | 80.4 | No limit | Incurable suffering, current expert proof |
| Drug dependency | 80.5 | 5 years | Treatment ongoing or completed |
| Conditions | 83-84 | 2-5 year period | Prohibitions, duties and payments |
| Modification | 85 | During the period | Changed circumstances |
| Revocation | 86 | Full service | Not automatic; hearing mandatory |
| Remission | 87 | Definitive | Requested expressly; starts cancellation |
This map is indicative; each suspension depends on the specific penalty, record and circumstances.
The suspension is won with a file, not a plea: the penalty strategy directed at staying below two years, the documented payment plan for the civil liability, the request filed in the judgment or immediately upon finality, and the accreditation of ties, work and treatment for the favourable prognosis. Where records exist, the exceptional route of Article 80.3 is invoked with the complete plan; where illness or dependency exists, Articles 80.4 and 80.5 with current expert evidence.
And the aftermath is defended too: revocation for a new offence is not automatic and requires the prognosis to be shown unfounded, with a mandatory prior hearing; and the definitive remission of Article 87 is requested expressly, because it activates the cancellation of the record that the courts delay by inertia.
Those facing a first conviction of up to two years: the ordinary route prepared from day one.
Non-habitual offenders: the exceptional route of Article 80.3 with a complete plan.
Convicted persons with incurable illness: the urgent route of Article 80.4 with interim measures.
Drug-dependent offenders: the five-year ceiling of Article 80.5 and the defence of relapses that are not abandonment.
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