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modification of sentence
3.800 and 3.850 Postconviction Relief
Sometimes in the pursuit of justice mistakes are made by judges, the State, defense attorneys, and others. In other cases, the human passions of a sentencing judge may cause him or her to impose a harsh sentence which he or she might later reconsider, if asked. These mistakes and oversights are rare but real, and my office is here and fully equipped to stand and fight in your corner against these mistakes.
Two Florida Rules of Criminal Procedure, Rules 3.800 and 3.850*, are the vehicles most often used in my practice for the correction and reduction of sentences already imposed by the judge, as well as for having unlawful judgments, convictions, and sentences altogether set aside. Some examples of common post-conviction problems that I am able to assist with are:
- Missing credit for time served in Florida and out-of-state jails
- Involuntary guilty pleas (whether a plea agreement exists or not)
- Unlawful, excessive sentences
- Florida guideline scoresheet errors
- Ineffective assistance of trial counsel
- Newly discovered evidence</p>
If you believe that you or a family member are victims of an illegal sentence or an unlawful conviction and sentence, please call my office in Melbourne, Florida for a free consultation: (321) 757-6848 or feel free to use the “Contact” tab on the right hand side of this screen to send me an e-mail message.
When you come for the consultation, please bring with you (if available):
- Sentencing “Guidelines Scoresheet”
- The written judgment, sentence, and commitment
- Sentencing transcripts
- Trial transcripts
- Record on appeal, including order affirming the lower court’s judgment.
- Any previous 3.800 or 3.850 filings for the conviction
After our consultation, my staff will make copies of the portions of these records that I’ll need to best represent your position. You may keep the originals in your possession if you wish.
*Please remember, some time limitations apply to Rule 3.800 and 3.850 filings, so it is important to contact an attorney soon regarding your specific post-conviction relief needs. A motion to correct an illegal sentence can be made at anytime. A motion to set aside and vacate a sentence based on new evidence can be made at anytime if the evidence is in fact new. A motion for to set aside and vacate a sentence because an attorney was ineffective has to be filed within two years of the sentencing date or the date of a final appeal, whichever is later.
Sentence Modifications
A person can move to modify a sentence within sixty (60) days of the sentence, or within 60 days of a lost appeal.
RULE 3.800. CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES (c) Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or upon motion filed within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal, or within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. If review is upon motion, the trial court shall have an additional 60 days or additional time as agreed by the parties to file an order ruling on the motion. This subdivision shall not be applicable to those cases in which the death sentence is imposed or those cases in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.