An issue that arises in criminal cases from time to time is whether a court can modify a sentence or probation after the initial sentence is entered. The answer is "yes," subject to some limitations. However, just because someone qualifies to request sentence modification does not meant that a judge will modify the sentence. Especially where the sentence is pursuant to a negotiation, judges are often going to be very reluctant to modify the sentence.
Incarceration Portion of the Sentence
There is a limited window of time in which a sentencing judge can correct, modify or reduce the length of the incarceration portion of a sentence. OCGA § 17-10-1 (f) states that such an action must be taken within one year of the date upon which the sentence is imposed or within 120 days after receipt by the court of the remittitur in the case of an appeal which is affirmed, whichever is later.
So, if a person enters a plea pursuant to a negotiated plea and does not appeal the conviction, the motion would have to be filed within one year of the sentence date.
If there is a trial and a conviction and the person appeals, then the motion for modification can be filed after one year but not more than 120 days after the record is returned from the appellate court to the trial court.
The motion must give notice to the prosecuting attorney and must give notice of a hearing date.
Before you call or inquire, you should be aware that there are limited circumstances where a sentencing judge is likely to adjust the sentence downward. If there has not been some major change regarding the evidence supporting the sentence or the situation of the defendant, a judge is unlikely to act on a motion for modification. While I am always willing to look at and consider inquiries, there will be very few cases that I will accept for this type of modification.
Probation Portion of the Sentence
The court imposing sentence can modify, terminate or revoke the probation portion of the sentence at any time during the pendency of the sentence. OCGA § 42-8-34 (g). This can include modifying the length of the probation or the conditions of probation.
Modification of the conditions of the probation can be especially important in cases involving sex offenses. The special conditions of probation on these cases can be especially onerous and are not necessarily adjusted to the specific facts of the individual's case.
Where someone has successfully completed a significant portion of their sentence, we can look at requesting early termination of the sentence. This will need to be accompanied by evidence that indicates to the court that rehabilitation has occurred. In other words, there needs to have been a significant period with no probation violations, completion of treatment, follow-up with drug and alcohol treatment (where appropriate), and continued employment.
Fine Portion of the Sentence
When a sentence includes a fine, the sentencing judge has authority to convert the fine to community service based upon the federal minimum wage or such other amount as the court deems appropriate. This can be for some or all of the unpaid fine.
We have been involved in the modification of a number of sentences over the years, including reductions of sentence length, corrections of sentence start dates, and modification of the terms and conditions of the sentence. Black Law Offices, LLC, is ready to help you too.