Motion to Correct Sentencing

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Motion to Correct Sentencing

Generally, a criminal defendant cannot appeal a lawful sentence after a trial. However, a defendant or the prosecution can file a motion to correct, reduce, or modify the sentence. This is possible where the sentence is illegal, unconstitutional, or unreasonably excessive.

If a sentence exceeds the maximum punishment stipulated by law for a particular crime, your legal team can file a motion to correct the sentence. The defendant’s legal team can file the motion alongside a motion for a hearing or a notice of appeal.

Our team at Panella Law Firm can help you file a motion to correct sentencing. We will carefully examine the sentencing and commence the process to have the judge reverse or correct their decision. Working with us gives you a higher chance of a favorable outcome, so contact us today at 407-233-1822.

Why Choose Us?

The severity of the punishments for crimes makes it imperative for accused persons to work with a criminal defense lawyer. If the court gives a wrong sentence and you fail to contest it, you might find yourself serving more time or a harsher punishment than the law allows. Therefore, as your attorneys, we will respond swiftly.

We will file the motion to correct the sentence within the time provided by the law. Our criminal defense lawyers are among the best in Orlando, Florida. Also, our clients have nothing but high praise for our compassionate and results-oriented representation. Therefore, don’t go on this journey alone; contact us today at Panella Law firm to discuss your case.

Motion to Correct an Illegal Sentence Under the Amended Florida Rules of Criminal Procedure

Under Rule 3.800 (a) of the Amended Florida Rules of Criminal Procedure, a defendant can file a motion for a court to correct an illegal sentence it imposed or fix an incorrect calculation in the sentencing scoresheet. Also, a defendant can bring a motion to correct a judgment that does not give proper credit for time served.

If you spend time imprisoned during your trial and the court was supposed to factor it in during sentencing but failed to, you can ask the judge to correct the mistake.

However, your legal team must provide the court record showing that you are entitled to have the time spent in prison factored into your sentence. Also, a motion to correct a sentence must be filed before a direct appeal. Even if there’s a direct appeal pending on the case, the party seeking the correction can still file a motion.

Motion to Correct a Sentencing Error Under the Amended Florida Rules of Criminal Procedure

You can also file a motion to correct a sentencing error, whether clerical or legal.

Clerical Errors

The court can change its records and correct clerical errors before or after sentencing if the appeal has yet to be filed. However, if the defendant or prosecution has appealed the case, the party who wants the correction will file a motion to amend the judgment rather than a motion to correct the sentence.

A clerical error is an incorrect record of what happened during the trial or what was decided by the court. It is different from legal reasoning mistakes. A sentencing record will have clerical errors if one of the following exists:

  • The court listed a wrong offense as dismissed.
  • The court wrote the incorrect statutory reference.
  • The terms of imprisonment written on the judgment are different from what the judge read in court.

Although courts have the inherent power to correct clerical errors, they cannot fix a judicial mistake under the guise of amending clerical errors.

Legal Errors

The court can modify legal errors in judgment even if the defendant has filed a notice of appeal. A legal error involves a mistake in judicial reasoning or determination. For example, if a judge imposes a sentence that exceeds the maximum years permitted by law, it is a legal error. Also, if the court sentenced a defendant because they are a habitual offender but dismisses the underlying felony, it is a legal error.

Rule 3.800 (b)

Under Rule 3.800 (b) of the Amended Florida Rules of Criminal Procedure, a defendant or the prosecution cannot file a motion to correct a sentencing error for the death penalty if there is a direct appeal to the Supreme Court under Article V, Section 3(b)(1) of the Florida Constitution.

Rule 3.800 (b) also provides the rules the motion to correct a sentence must comply with. It includes the following:

  • The motion must identify the error with specificity and provide the proposed correction.
  • The party responding to the motion must do so within 15 days by admitting or contesting the alleged error.

Also, the state (prosecution) can file a motion to correct a sentencing error if the correction will benefit the defendant or fix a scrivener’s error.

A scrivener’s error is an unintentional mistake. Rule 3.800 (b) further states that a defendant or the state may file a motion to correct a sentencing mistake during the time permitted to file a notice of appeal at the appellate court.

Once the movant files the motion, the court must determine whether the issue(s) raised can be resolved without a hearing. If it cannot be fixed, the court must hold a calendar call within 20 days from the motion’s filing.

Also, all the parties involved must receive a notice of the hearing. During the hearing, the court will either rule on the motion or fix a date for an evidentiary hearing.

The evidentiary hearing allows the party alleging the sentencing error to present proof that shows the judge’s mistake.

It must be held no later than 20 days from the calendar call date. Furthermore, the court must rule on the motion within 60 days of the filing date. If the court fails to decide within that time, the motion will be considered denied. However, the party who filed the motion can file another one for rehearing within days from when the court ruled on the motion to correct a sentencing error or 15 days from when the court should have ruled but failed to.

Where Can You File a Motion for Correcting Sentencing Error?

If there is a pending appeal, a defendant or the prosecution can file the motion to correct a sentencing error in the trial court. The counsel of the appellant must file the motion, and it must be served to the other party before the first brief of the appeal. Furthermore, the appellant’s counsel must file a notice of pending motion to correct the sentencing error at the appellate court. Once the lawyer files the notice at the appeal court, the time for filing the appeal brief extends by ten days.

Note that your trial lawyer must not necessarily be the appellate attorney.

If you have a different appellate lawyer, the motion must clearly state they are representing you instead of the attorney you had during the trial.

This is the case whether the defendant or the state is the movant. Our criminal defense team at Panella Law Firm has experience representing clients in trials and appeals. Learn more about how we can help you by calling us at 407-233-1822.

Motion to Reduce or Modify a Sentence Under the Amended Florida Rules of Criminal Procedure

Aside from correcting illegal sentences and errors, you can file a motion to modify sentence. Here, your sentence modification attorney will ask the trial court to review its earlier judgment because of the discovery of new and vital facts. This could be the sentencing range or the type of charges filed.

For example, suppose new evidence shows that the defendant should have faced an assault charge instead of second-degree murder. In such a case, the defendant’s lawyer will file a motion to modify the sentence to reflect the charge and the punishment the person should have faced.

Timeline for Filing a Motion for Modifying a Criminal Sentence in Orlando

Under Rule 3.800 (c), a court may modify or reduce a legal sentence it imposed within 60 days of the sentencing. Alternatively, the modification or reduction can happen within 60 days after receiving a mandate from the appellate court.

The trial court is also expected to modify a sentence within 60 days of receiving a certified copy of an appellate court ruling dismissing an original appeal. Once the movant files the motion, the court has 90 days to rule on it. But if the movant and the respondent agree, the date can be extended, or the court can change it.

The timeline for filing a notice of appeal is stringent, and without knowledge of the law, you might miss it.

Therefore, you should hire an experienced legal team to file the motion to correct sentencing. Our lawyers will file the motion in a timely manner and represent your interests at the hearing.

Motion to Correct Sentencing FAQs

It is not uncommon to have questions about how to file a motion for sentence modification or correct illegal and sentencing errors. Since most criminal case defendants are unaware that they can file this motion, they make a lot of inquiries once we inform them of the possibility.

Here are some of the frequently asked questions.

  • Who Files a Motion to Correct Sentencing?

    If an appeal is pending before an appellate court, a defendant or the state can file a motion to correct sentencing at the trial court. This could be an action to correct an illegal sentence or an error, to modify or reduce the sentence.

  • How Long Do I Have to File a Motion to Modify or Reduce a Sentencing Error?

    You have 60 days from the day the court delivered the sentence to file a motion to reduce or modify a sentencing error.

  • What is a Motion to Reduce Sentence in Florida?

    The motion to modify or reduce a sentence asks a trial court to review or reconsider its earlier decision because of new evidence.

  • WWhat Are the Reasons for Filing a Motion to Correct Sentencing?

    You can file a motion to correct sentencing if the punishment is more than the maximum stipulated by law or the sentence is illegal. You can also file a motion if the sentencing judge made a clerical or legal error.

Don’t Fight Alone! Let Our Top Orlando Criminal Lawyers Help You

The peculiarity of criminal cases and the penalties faced does not afford you the luxury of handling your defense or appeal alone. Criminal trials require experience and an in-depth understanding of applicable laws and procedures. Our criminal defense lawyers at Panella Law Firm possess these qualities.

We will effectively defend your charges and file motions to correct sentencing errors where applicable. Contact us at 407-233-1822 to schedule a consultation.

Attorney Mike Panella

For Mike Panella, the concept of zealous advocacy developed at an early age – fueled by what he perceived to be an unjust resolution in a personal family legal matter. Mr. Panella would later attribute his passion to defend the rights of those who stand accused to those inequities in the legal system he observed, and considered unjust. Before opening Panella Law Firm, Mr. Panella served as an Assistant Public Defender for Florida’s 18th Judicial Circuit Public Defender’s Office and worked hundreds of cases in both Brevard and Seminole Counties. Mr. Panella was undefeated at trial. [ Attorney Bio ]

Contact Attorney Michael Panella

Need a criminal defense service? Turn to Panella Law Firm and contact us today with your question.

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