How Do You File A Motion For Resentencing?

How Do You File A Motion For Resentencing?

In a criminal case, a person convicted of a crime can usually request resentencing after the judge imposes the sentence. The specific name of the motion you must file depends on where you are, but it could be called a “motion for resentencing,” a “motion for reconsideration,” a “motion to modify or correct a sentence” or something similar.

No matter the name, the purpose of this kind of motion is the same: to change the defendant’s sentence. The reasons why a defendant may ask a judge to change his or her sentence could include anything from a “typo” in the judgment of sentence to a reduction based on assistance the defendant provided the prosecution in another criminal case.

When can you file a motion for resentencing?

The times when you can file a motion for resentencing depends a lot on where you’re located. In federal court, for example, Federal Rule of Criminal Procedure 35 sets forth the times when you can file a motion to correct or reduce a sentence. In a general sense, this rule allows resentencing in two circumstances: for obvious errors and for assistance in another criminal case.

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First, Rule 35 allows you to ask the judge to fix obvious errors from the sentencing hearing or your judgment of sentence. Subparagraph (a) of the rule states that, “[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” The most common examples of this kind of error are typos.

Second, Rule 35 allows for resentencing “[u]pon the government’s motion made within one year of sentencing … if the defendant, after sentencing, provided substantial assistance is investigating or prosecuting another person.” This may include becoming an informant. If the government’s motion is not made within one year of sentencing, a different set of rules apply.

Specifically, if more than a year has passed since sentencing, “the court may reduce a sentence if the defendant’s substantial assistance involved” “information” that was

  • “not known to the defendant until one year or more after sentencing;”
  • “provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or”
  • useful, but “the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.”

Can you file a motion for resentencing in other situations?

Sometimes. In some cases, defendants or their attorneys will file this kind of motion to ask for leniency. They may realize that they didn’t highlight specific factors that could have changed the judge’s mind about a sentence. Whether and when you can file this kind of motion depends on the specific laws and rules that apply in your state or in federal court.

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Examples of when judges might consider a motion like this include when

  • the applicable sentencing laws changed, and public policy supports a reduction (such as when a new sentencing law passes that applies retroactively),
  • there are extraordinary and compelling reasons or
  • a person in custody is 70 or older, has served at least 30 years and is not a public safety threat (such as compassionate release).

In most of these cases, it is entirely up to the judge to decide whether to reduce a sentence.

The Takeaway:

People have the opportunity to file a motion for resentencing in several circumstances. If there is an obvious error during the sentencing hearing or in the judgment of sentence, you can ask for resentencing or a correction. If you provide assistance to the government in another criminal case, the government can do the same. And if the circumstances around you or your case change, you have options as well.

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