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Motion To Modify

Resentencing in California - Motion to Modify a Sentence

It is rare, but it is certainly possible, to attempt to modify somebody's sentence in a criminal case in one of the Los Angeles courts after the judge has already sentenced them. I get clients who call me. They're not happy with their sentence. Maybe they're not happy with the performance of their attorney.

Maybe they were under pressure to plead because they were in custody. There's a whole slew of different things that can trigger somebody to later want to modify or change their sentence.

If you were sent to prison, then there's the 120-day rule which basically means that the judge has to modify the sentence within 120 days or they lose jurisdiction after that and are unable to do that. If you're given probation,

Motion To Modify A Sentence In A Criminal Case

then the judge would still have the power throughout the probationary period to modify the terms and conditions of your probation and to modify your sentence.

Legal Grounds to Modify Sentence

What I have people do who want to try to modify their sentence, you come in and sit down, and we go over the facts and circumstances surrounding your case and we see if there are grounds for modifying your sentence.

For example, one ground could be that the sentencing judge, prosecutor or both, were not presented with all the mitigating factors related to you and your case.

Maybe there was a huge piece of evidence that could have either helped you get the case dismissed, or a different charge, or got you less time in the case if it was presented to the judge and the prosecutor, but for some reason, it wasn't presented.

Maybe it was discovered after your plea. Maybe your attorney was not a good attorney and did not present that particular evidence that could have helped you get a better resolution in your matter. Then a motion can be filed.

Procedural Matters in Filing

The motion to modify is going to have to be a written motion with the judge. Again, if it's a prison sentence, it has to be done within 120 days of the sentence. Your lawyer has to argue the case in front of the judge, and typically you're going to have the defendant there. So, if the defendant was given prison time, then the defendant is going to be ordered out from prison.

The judge will listen to the arguments and you can bet your bottom dollar that the prosecutors are going to file an opposition to modify the sentence, arguing the sentence should not be modified.

It was the right sentence and the person has already pleaded guilty and there's no way that anything should be changed. Especially if it was a negotiated plea, they're going to say we negotiated that plea. If you change the sentence, then we want to take back the plea altogether. We're not going to let this person plead guilty or no contest. Let them go to trial and then see what happens to them after that.

So, there's a whole bunch of different considerations when you're assessing whether a motion to modify a sentence is appropriate because that could trigger some other things, like for example what I just mentioned, where the prosecutors say, if you're going to modify that sentence, we want the plea withdrawn. This defendant shouldn't be able to have their plea if you're going to give him that sentence, we would have never allowed them to plead guilty and get a sentence like that.

So, if they want a sentence like that or they don't want to be sentenced, they need to go to trial and be found not guilty, or go to trial, lose and then you could give them that sentence if you want to judge, but we need to get the benefit of our bargain and there's no way you should be able to modify the sentence. So, that's going to be their argument in general. Again, depending on the facts and circumstances of the case.

Legal Argument to Modify Sentence

If you're going to try to argue in a motion to modify sentence and say, I just got some new evidence. Be prepared for the judge and the prosecutor to look at you or your defense attorney and say, why didn't you present that evidence at the time of your sentencing?

Why didn't you present that evidence before you entered a negotiated plea if that's what you did? So, if you can't answer that or say, well I just didn't know about it, they're going to say you should have used due diligence to try to find the evidence.

It's not our responsibility to find that evidence. If you didn't put in the time and effort to find the evidence, then we're not going to modify your sentence. So, realize these motions to modify sentences are not favored by the judges and are certainly not favored by the prosecutors, and be prepared for them to argue to say listen, you came in here.

You told us you wanted this plea agreement, you were good with this sentence. You cannot change it now unless you have good grounds to do that, and if you don't have been grounded, there's no way a judge is going to modify a sentence in a criminal case.

So, the best thing to do – and what I have you do is – you come in, and we sit down and go over the facts and circumstances surrounding your case, and once we have all of the information we can then make an informed decision about whether a motion to modify the sentence is applicable, whether you have the grounds to make such a motion and whether or not you can actually make the motion depending on the time that has passed since the sentencing.