Filing Motions and Seeking Resentencing

Filing Motions and Seeking Resentencing

Seeking resentencing or filing a motion to modify a sentence can be a complicated process. This article aims to break it down into simple, easy-to-understand steps so you know what to expect.

When Can You File for Resentencing?

There’s a few main situations when you may be able to file for resentencing or a sentence modification:

• If there’s been a change in the law that makes your sentence illegal or excessive. For example, Proposition 47 in California reclassified some felonies as misdemeanors, so people sentenced for those felonies can petition for resentencing.
• If new evidence or facts come up that weren’t presented at your original sentencing. For example, if new DNA evidence proves your innocence.
• If the judge made a mistake in sentencing, like calculating your sentence wrong under the guidelines.
• If you can show the sentence is unjust or disproportionate.

So basically, you need some kind of justification for why your sentence should change. You can’t just ask for resentencing because you don’t like your sentence. There has to be a legal reason.

What Are Common Grounds for Resentencing?

Some of the most common reasons people seek resentencing in California are:

• Proposition 47 – Reduced many drug possession and low-level theft charges from felonies to misdemeanors. If your crime got reclassified, you can petition for resentencing.
• Proposition 36 – Modified California’s Three Strikes law. Allows people serving life for non-serious, non-violent third strikes to petition for resentencing.
• Senate Bill 1437 – Changed the felony murder rule in California. Allows people convicted of murder under the old felony murder rule to petition for resentencing if they weren’t the actual killer.
• Proposition 64 – Legalized recreational marijuana. Allows people serving sentences for marijuana offenses that are no longer illegal to petition for resentencing.

So if you were convicted under an old law that has since changed, you may have grounds for resentencing under the new law. Each law has specific eligibility requirements thou.

How Do You File for Resentencing?

The exact process depends on what law you’re using to seek resentencing. But generally it goes like this:

1. File a Petition

You start by filing a petition in the court that originally sentenced you. The petition explains why you should be resentenced under the new law.

• For Prop 47, you file a form called a Petition for Resentencing (Form CR-180).
• For Prop 64, you file a Petition for Recall or Resentencing (Form CR-400).
• For SB 1437, you file a Petition for Resentencing (Form CR-2550)

2. Serve the DA

After filing, you have to serve the petition on the District Attorney’s office that prosecuted you. This gives them a chance to respond.

3. DA Response

The DA can file a response opposing your petition if they don’t think you qualify. They may argue the law doesn’t apply to you or that you pose a public safety risk.

4. Hearing

If the DA doesn’t oppose, the judge can grant resentencing without a hearing. But if the DA opposes, there will likely be a hearing to argue it out.

5. Judge’s Decision

At the hearing or after reviewing your petition, the judge will decide whether to resentence you or not. If granted, they will modify your sentence as allowed by the new law.

So in summary – file a petition, serve the DA, potentially have a hearing, and hopefully get your sentence reduced! It can be a long process taking months, so be patient.

What About Filing a Motion to Reconsider the Sentence?

In addition to petitions for resentencing under new laws, you can also file a motion directly asking the court to reconsider your original sentence.

You would file this in the court that sentenced you, stating the legal and factual reasons your sentence should be reduced. For example, you may argue:

• The judge failed to properly consider mitigating factors about your case when imposing the sentence.
• The sentence is unjustly disparate from sentences imposed on similar offenders for similar crimes.
• There’s new information about your mental health or background the judge should take into account.
• You’ve exhibited good behavior in prison showing you’re rehabilitated.

The judge has discretion whether to grant a hearing on your motion or just deny it outright. Your chances may depend on the strength of your legal arguments and how sympathetic your case is.

Having an attorney help draft the motion can be extremely useful, since they know how to present the best legal case. It can be an uphill battle, but may be your only option if no resentencing laws apply.

What About Filing Appeals and Habeas Petitions?

Beyond motions for reconsideration, you can also challenge your sentence through appeals and habeas corpus petitions:

Direct Appeal – You can appeal your conviction and sentence to a higher court, arguing the trial court made legal errors that require reversal. But this has to be filed soon after sentencing.

Habeas Corpus Petition – After your direct appeals are exhausted, you can file a habeas petition arguing your imprisonment is unlawful. For example, due to ineffective assistance of counsel or prosecutorial misconduct.

Successive Petitions – If a habeas petition is denied, you can file successive petitions raising new claims not previously presented. But it’s difficult to get successive petitions approved.

Appeals and habeas petitions allow you to make broader challenges to your conviction and sentence, beyond just asking for leniency. But the time limits and barriers to successive petitions make them tricky.

Finding an Attorney to Help

Trying to file petitions and motions for resentencing yourself can be extremely complicated. Having an experienced criminal defense attorney assist you can greatly help your chances. Some things a lawyer can do:

• Determine if you’re eligible under any new resentencing laws.
• Obtain records from your case to support your petition.
• Draft persuasive legal arguments why your sentence should be reduced.
• Represent you at any hearings before the judge.
• Advise you if appeals or habeas petitions could help overturn your conviction.

Many attorneys offer free consultations, so you can discuss your options. Check local California criminal defense attorneys, or search for “sentencing relief attorney” or “post-conviction attorney.” Be sure to ask about their experience with petitions like Prop 47, Prop 36, SB 1437 etc.

Having an attorney in your corner can make all the difference in getting a fair outcome. Don’t be afraid to reach out!

Don’t Lose Hope!

The resentencing process can be frustratingly slow and complicated. But don’t let that stop you from seeking justice. With the right legal arguments and persistence, many people have success getting their sentences reduced, especially under newer, more progressive laws.

Do your research, understand your options, and don’t be afraid to ask for help. There are people willing to assist if you just reach out. So take it step by step. With hope and determination, you never know what may be possible!