Once the judge hands down a sentence, can a defendant ask the judge to reconsider or modify the sentence? For clear sentencing errors, judges can typically fix the error at any time. But if a defendant seeks a modification or reduction for other reasons, most states and federal rules limit such requests. And, in many cases, time is of the essence.
Below, we’ll review the basics of motions for criminal sentence reductions, corrections, and modifications.
Can a Judge Change or Reduce a Sentence?
In most states, judges have some authority to reduce a defendant’s sentence but only within certain time frames. Whether and how you can request a sentence reduction depends on where you are being sentenced. The rules and laws vary by federal and state courts.
Asking for a Sentencing Reduction in State Court
State laws and court rules determine if a defendant can request a sentence reduction, and if so, the time limits and any other constraints for making such a request. States sometimes restrict the type of offenses or sentences that qualify for a reduction request. For instance, a mandatory minimum sentence can't be reduced.
Time Limits on Motions
Typically, the timeline to ask for a sentence reduction is relatively short. A state might set an exact amount of time post-sentencing (such as 30 or 90 days), while other states allow motions while a case remains under the court’s jurisdiction (such as during a deferred or suspended sentence).
State courts vary greatly when it comes to rules on sentencing reduction motions. Whatever the time limit is, the defendant must make a motion within the time constraints or lose the opportunity. Your attorney might make an oral motion or file a written motion.
Considerations in Sentencing Reductions
When deciding on a defendant’s motion, judges can generally look at all the relevant and material factors originally considered, as well as any new evidence presented. In some states (but not all), the judge may consider reports on the defendant’s behavior post-sentencing.
Depending on the state law and circumstances of the case, the judge might need to get the prosecutor’s approval for a reduced sentence (for instance, if a plea agreement was involved). Probation officers and victims might also be able to object to the motion.
While some courts review these motions as acts of leniency, others have specified their purpose is to allow a judge to contemplate and reflect on the fairness of the sentence without the pressures of trial.
How Often Are Sentence Reductions Granted?
As with the original sentence, judges maintain a significant amount of discretion in whether to grant the motion. Reconsidering a sentence is not a decision taken lightly. Your attorney should have insight into whether such motions stand a chance.
Asking for a Sentence Reduction in Federal Court
Many states wrote their sentencing reduction rules based on the former federal rule governing such requests. The federal rule previously allowed a judge to reduce a sentence within 120 days of sentence imposition or probation revocation. Congress repealed that authority in 1987.
The current version of Rule 35 only allows sentence reductions in cases where the defendant provided substantial assistance to the government in investigating or prosecuting another case. These requests must generally be made within one year of sentencing unless good reason exists for a delay. (Fed. R. Crim. P. 35.)
Beyond providing substantial assistance, statutory authority exists for the court to modify and reduce a sentence, but these instances occur much later in the process. For instance, a judge may modify and reduce a sentence when:
- the sentencing law changed and public policy supports a reduction
- extraordinary and compelling reasons exist, or
- the prisoner is 70 or older, has served at least 30 years, and is not a public safety threat (compassionate release).
Asking for a Sentencing Modification or Correction
Defendants might seek a sentencing modification in two other scenarios—those involving errors and illegal sentences. Most often, these requests will be granted as long as the illegality or error is obvious.
Correcting a Sentencing Error or Clerical Mistake
Many states and federal law allows a judge at any time to correct a sentencing mistake made by a clerical error. An example of a clerical error is a transposed number on the judgment or an incorrect date.
When it comes to other errors, federal rules and some states restrict the amount of time to correct the mistake. For instance, the federal rules give the sentencing court 14 days after sentencing to fix technical or mathematical errors. An example of a technical or mathematical error would be incorrectly calculating a guidelines sentence. Some states closely follow the federal rule, while other states allow these types of errors to be corrected at any time or before the court loses jurisdiction over the defendant. (Fed. R. Crim. P. 35, 36.)
Correcting an Illegal Sentence
Most (if not all) jurisdictions allow judge to correct an illegal sentence at any time. Examples of illegal sentences include:
- a sentence imposed by a court without “jurisdiction,” meaning the court didn’t have authority to hear that matter
- a sentence that doesn’t conform to the requirements of the relevant statute (for example, a sentence imposed outside the range set in law), or
- a sentence that is ambiguous as to how and when the defendant must serve it.
Can the Judge Increase the Sentence in a Correction?
It depends. A judge cannot increase a defendant’s punishment after a legal sentence is handed down and executed (put into force). This action violates double jeopardy principles, which prohibit more than one punishment for the same offense.
However, where the original sentence was illegal, it’s in essence void and should have never existed. In such cases, a judge may impose a “harsher” sentence because it replaces (rather than increases) the invalid sentence.
Talk to Your Lawyer
Talk to your lawyer about the possibility of requesting a sentencing reduction or correction.