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 major limitations.
It will be a rare case where the court will modify the incarceration portion of a sentence. It requires timeliness and good reasons for changing the court's own decision. In some cases, mandatory minimums will prevent even that option. Filing a motion for sentence modification is not like giving a coupon to a checkout person at the grocery store. When it comes to cutting prison time, you have to have evidence that was not considered by the judge, usually because it did not exist at the time of sentencing. Although the time requirement is important, within one year of sentencing, the reason for filing is equally important. Wanting less incarceration time is not a reason.
My office does not take on the filing of these motions for sentence modification except in cases that I handled in the trial court. This article describes the basic process which is a part of most criminal defense attorneys' toolkits. The thing about a specialized tool, though, is that it is for a specialized task. Your case may not be appropriate for this motion.
However, just because someone qualifies to request sentence modification does not mean 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. Remittitur is the return of the record, the case documents, from the appeals court to the trial court.
- Pleas. 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 for the judge to modify the incarceration part of the sentence.
- Trials. If there is a trial and a conviction, then the sentence will become final 30 days after the sentence, if there is no appeal. The motion for modification would then ahve to be filed within er one year of the sentence being filed.
- Appeal. If there was a trial followed by an appeal, the time limits would be triggered by the date of the remittitur, the return of the record from the appeals court to the trial court. The deadline would then be the later of one year from the sentence or 120 days from the remittitur.
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. Even if a case is pursued, it will still often be difficult to obtain relief.
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.