Not necessarily. Article 80 of the Spanish Criminal Code (Código Penal) allows the judge to suspend prison sentences of up to two years if it is your first offence, the sentence (or the total of the sentences) does not exceed two years and you have paid the compensation or undertake to pay it according to your means. The suspension lasts from two to five years: if you do not reoffend and you comply with the conditions, the sentence is extinguished without you ever setting foot in prison.
A suspended sentence is the answer to the question almost everyone asks us after a conviction: “Am I going to prison?” It is a distressing question, and the answer depends on a few very specific facts: how long the sentence is, whether you have a criminal record that counts and what happens with the compensation. We explain it with the Criminal Code in hand.
What a suspended sentence is
Suspension of the execution of the sentence (articles 80 to 87 of the Criminal Code) is a decision by the judge whereby the prison sentence is not served while a probation period runs. If you do not commit a new offence during that period and you comply with the conditions imposed, the sentence is remitted, that is, extinguished. If you fail, the judge can revoke the suspension and order you to go to prison.
The test in article 80.1 is whether it is “reasonable to expect” that serving the sentence is not necessary to prevent further offences. To decide, the judge assesses the circumstances of the offence, your personal, family and social circumstances, your criminal record, your conduct since the offence and, in particular, your efforts to repair the harm. Do not confuse it with pre-trial detention (prisión provisional), which is an interim measure and not a sentence: we explain this in the differences between pre-trial detention and a final sentence.
Requirements for an ordinary suspension
Article 80.2 sets three conditions:
- Being a first-time offender. Previous convictions for offences of negligence or for minor offences (delitos leves) do not count (unless they form an aggravated offence for repeated reoffending, a clarification added by Organic Act 1/2026), nor do criminal records that have been cleared or should have been, nor those that are not relevant to assessing the risk of reoffending.
- The sentence, or the total of the sentences imposed, must not exceed two years. Imprisonment in default of payment of a fine is not included.
- Having paid the civil liability and any confiscation. An undertaking to pay according to your financial means is sufficient if it is reasonable to expect that you will comply within the period set by the judge, who may require guarantees.
For offences that are only prosecuted on complaint by the injured party, the judge must hear the victim before granting the suspension (article 80.6).
Important: meeting the requirements does not give you an automatic right to a suspension. Article 80 says the judge “may” grant it. That is why the application needs to be well prepared: showing ties to the area, employment, family situation and, above all, that you have started to repair the harm.
Exceptional suspension and special cases
Even if you have previous convictions that count or the total of the sentences exceeds two years, article 80.3 allows, exceptionally, the suspension of prison sentences that individually do not exceed two years if you are not a habitual offender and your circumstances and efforts to repair the harm justify it. In that case, the suspension is always conditional on repairing the harm or paying compensation according to your means (or complying with a mediation agreement) and on a fine or community service.
- Very serious illness with incurable suffering (article 80.4): any sentence can be suspended without being subject to requirements.
- Offence committed due to drug or alcohol dependence (article 80.5): sentences of up to five years can be suspended if it is certified that you have overcome the dependence or are in treatment. The suspension period is then three to five years.
Periods, conditions and revocation
| Aspect | What the Criminal Code says |
|---|---|
| Suspension period | 2 to 5 years for prison sentences of up to 2 years; 3 months to 1 year for minor penalties (art. 81) |
| When it starts | From the decision granting it or, if granted in the judgment, from when the judgment becomes final (art. 82.2) |
| Prohibitions and obligations | Restraining orders, residence requirements, reporting to the court, training or rehabilitation programmes, among others (art. 83) |
| Additional conditions | Complying with a mediation agreement, paying a fine or doing community service (art. 84) |
| Revocation | A new offence that undermines the original expectation, serious or repeated non-compliance, or wilful non-payment of the civil liability (art. 86) |
| Remission | Once the period has passed without reoffending and the conditions have been met, the judge remits the sentence (art. 87) |
The prohibitions in article 83 are only imposed where they are necessary to prevent further offences and cannot be disproportionate. If non-compliance is neither serious nor repeated, article 86.2 allows new conditions to be imposed or the period to be extended, by no more than half of the period set. Before revoking, the judge must hear the prosecutor and the parties, unless immediate imprisonment is essential to prevent reoffending or absconding or to protect the victim.
Be careful with your criminal record: a suspension does not prevent the conviction from being registered. The period for clearing it is calculated under article 136.2 once remission has been granted. We explain this in how to clear a criminal record.
When the suspension is decided
Article 82.1 requires the suspension to be decided in the judgment itself whenever possible. If not, once the judgment is final, the judge must rule “as a matter of urgency” after hearing the parties, normally by court order during the enforcement stage.
In speedy trials (juicios rápidos), if you accept a plea agreement (conformidad) at the duty court, the suspension can be decided there and then and, under article 801.3 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal), your undertaking to pay the civil liability within the period set by the court is sufficient. We cover this in plea agreements in a speedy trial. If the judge refuses the suspension, the order can be appealed; our criminal appeals service in Alicante can help you.
If you are a foreign national: replacement by expulsion
Article 89 of the Criminal Code provides that prison sentences of more than one year imposed on a foreign national are replaced by expulsion from Spain, unless this would be disproportionate given their ties to the country, with specific rules for European Union citizens. It is an area with many nuances that you should look into with a criminal lawyer for foreign nationals in Alicante.
And if the sentence exceeds two years
Outside the special cases in article 80, a prison sentence of more than two years cannot be suspended. Even so, not everything has been decided:
- Third grade (tercer grado). The General Prisons Act (Ley Orgánica General Penitenciaria) allows a prisoner to be placed initially in a higher grade without going through the previous ones (article 72.3), and the third grade is served under an open regime. We handle this through our prison law practice in Alicante.
- Pardon. It is governed by the Act of 18 June 1870. Applying for one does not in itself halt the sentence, although article 4.4 of the Criminal Code allows the judge to suspend enforcement while it is decided in certain cases. More information on pardons in Alicante.
Suspended sentences in Alicante
Following Organic Act 1/2025, the former criminal courts are now the Criminal Section of the Court of First Instance (Sección de lo Penal del Tribunal de Instancia). According to the official Generalitat Valenciana directory of courts, the Alicante Criminal Section is based at Avenida de Aguilera, 53, and the Prison Supervision Section (Sección de Vigilancia Penitenciaria), which oversees the serving of sentences in prison, at calle Pardo Gimeno, 43.
The decision on suspension is dealt with in the enforcement proceedings (ejecutoria) opened after the judgment becomes final. That is where the supporting documents are submitted: proof of payment or a payment plan for the compensation, an employment contract, treatment reports and any information showing ties to the area.
At the firm, we prepare that application before the trial, so that the judge has everything needed on the day of the judgment. Celeste Pérez Bleda has more than 20 years’ experience in criminal law and more than 1,200 consultations, and our team will assist you in English. If the conviction relates to gender violence, suspension is subject to specific rules (articles 83.2 and 84.2), and we deal with it on our website specialising in gender violence.
Frequently asked questions
If I am sentenced to one year in prison, will I go to jail?
Not necessarily. A one-year sentence falls within the two-year limit in article 80 of the Criminal Code. If it is your first offence and you pay the civil liability or undertake to do so according to your means, the judge can suspend it. It is not automatic: the judge will assess your circumstances, your conduct since the offence and your efforts to repair the harm.
How long does a suspended sentence last?
For prison sentences of up to two years, the judge sets a period of between two and five years (article 81 of the Criminal Code); for minor penalties, between three months and one year. If it is granted because of drug or alcohol dependence, it is three to five years. It runs from the decision granting it or from when the judgment becomes final.
What happens if I cannot pay the compensation?
Failing to pay because of a genuine lack of means does not prevent suspension or lead to revocation. Article 80.2 accepts an undertaking to pay according to your financial means, and article 86 only revokes the suspension if you fail to honour that undertaking when you are able to pay. What matters is proving your situation and keeping to the payment plan set by the judge.
Will I have a criminal record even if my sentence is suspended?
Yes. The suspension keeps you out of prison, but the conviction is entered in the Central Register of Convicted Persons (Registro Central de Penados). After remission, the period for clearing it is calculated under article 136.2 of the Criminal Code, backdated to the day on which the sentence would have been served had it not been suspended. You can then apply to have it cleared.
Can my suspension be revoked because of a traffic fine?
An administrative traffic offence is not a criminal offence, so on its own it does not allow the suspension to be revoked. Article 86 requires a conviction for an offence committed during the period that shows the original expectation no longer holds, or serious or repeated non-compliance with the conditions. A road traffic offence under the Criminal Code would be a different matter.
If you are worried about going to prison, let’s talk before the judgment: that is when the most can be done. We study your case, tell you clearly what options you have and prepare the documents to apply for a suspension or, if that is not possible, the best route at the enforcement stage. Our team will assist you in English. Find out about our work in prison law in Alicante or message us on WhatsApp at 607 449 491, 24 hours a day: we will reply straight away.
Legal basis and sources
- Criminal Code (arts. 4.4, 80 to 87, 89 and 136)
- Criminal Procedure Act (art. 801)
- Organic Act 1/2026 on repeated reoffending
- General Prisons Act (art. 72)
- Act of 18 June 1870 on the prerogative of pardon
- Organic Act 1/2025 on the efficiency of the Public Justice Service
- Generalitat Valenciana: Alicante Criminal Section
- Generalitat Valenciana: Alicante Prison Supervision Section
