A criminal sentence is the punishment imposed upon someone who has committed a crime. A judge decides the formal legal consequences once a conviction has been determined. Something many people do not know is that criminal sentences can be modified once the trial has been completed. This remains true even if the criminal is already serving time in jail. The process is known as criminal sentence modification.

A criminal sentence modification is only available under certain circumstances, and is not available for all cases. However, there are cases in which a modification may actually be required. Some of these circumstances include:

  • An error being made during sentencing that needs correcting, such as obvious clerical errors;
  • The defendant assisting in another, separate criminal case by cooperating with prosecutors and providing necessary information or testimony;
  • The offender’s age, such as the offender being too elderly and considered not a dangerous threat to the community;
  • The offender having a terminal illness or disability that would cause the offender to be unable to serve their prison sentence;
  • Changes in state sentencing guidelines, such as reducing fines or prison time; or
  • The sentence having absolutely no legitimacy, as in failing to adhere to the proper sentencing ranges.

Criminal sentence modifications can be completed before or after sentencing has started. These modifications can often result in considerable reductions to penalties.

What is the Process for a Criminal Sentence Modification?

At any point in the trial, the defendant is allowed to request a sentence modification. In order to do this, the attorney representing the defendant will need to file a motion, and the judge will hold a hearing on the motion. Once the motion has been filed, there is typically a two-step process: proving the existence of new factors and the determination of justification.

Once the motion is under review, it is up to the defendant to prove that there are new factors in existence that would justify a criminal sentence modification. These new factors must be established by clear and convincing evidence. Thus, simply bringing up a new factor is not sufficient. New factors are facts, or a set of facts, that:

  • Are highly relevant to the sentence, but have not been made known to the trial judge at the time of sentencing (due to not being in existence at the time, or being accidentally overlooked by all parties involved); and
  • Contradict the original purpose of the sentence.

In most jurisdictions, if the initial sentence is greater than three years, the prosecutor must agree to have the motion reviewed.

If the judge comes to the conclusion that the new factors are in the defendant’s favor, they are granted the discretion to modify the sentence accordingly. The sentence may be corrected, modified, or reduced, based on the facts of the case. However, it is highly unlikely that the sentence would be dismissed entirely.

Additionally, the judge may decide to pass alternative sentencing, if the defendant is eligible. Alternative sentencing includes restitution and fines, work release and weekend jail programs, house arrest with electronic monitoring, community service, and jail diversion and rehabilitation programs.

Can a defendant be punished with a greater sentence upon presenting new facts? Yes, but only if the defendant claims that the sentence was illegal, and further investigation reveals that the legal sentence is actually more harsh.

However, if the original sentence was legal, it is not possible for it to be modified in any way that would increase the punishment. The law of double jeopardy comes into play when claims of illegal sentencing are made.

How Can a Criminal Sentence be Modified Under Rule 35, and Can a Criminal Sentence be Appealed?

As previously mentioned, a criminal sentence may be modified if the defendant cooperates and provides valuable information or testimony to aid in the prosecution of someone else. Rule 35 of the Federal Rules of Criminal Procedures states that a judge may reduce or modify the defendant’s sentence in these circumstances.

If a defendant provides the valuable information before being convicted, they could receive a lighter sentence or reduced charges. However, if they have already been convicted, and the case is final, they may still petition the court for a reduction within one year of the conviction. The reduction must meet the guidelines for reductions set by the Sentencing Commission.

Appealing a sentence is no easy task. Sentences may only be appealed if said sentence is illegal, unconstitutional, or unreasonably excessive. Once appealed, the appeals court can modify the original sentence(s) given to the defendant. Criminal defendants can appeal convictions (the statement of guilt), but not necessarily a sentence (the punishment assigned to that statement of guilt).

Do I Need an Attorney for Help with a Criminal Sentence Modification?

Requesting a modification is a complex process with several steps. A motion will need to be filed, and new factors will need to be discovered and proved. A knowledgeable and qualified criminal attorney will be your best bet for potentially receiving a modification of a criminal sentence.

Additionally, an attorney will help you determine if you qualify for a criminal sentence modification, file the motion, help you gather and prove new factors, as well as represent you in court, if necessary.