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Criminal Defense » 3 Ways to Get a Criminal Sentence Modified in California
There are three ways in which a person can try to modify a criminal sentence in California. These are when the person:
There are also two ways in which a court can modify a sentence on its own accord. These are when the court:
A motion for resentencing (“MFR”) is a legal motion that:
An MFR is also referred to as a petition to modify a sentence.
In response to the petition, a judge can:
The court will often decide to change a sentence if:
An MFR can be filed with the court at any time after the original sentence provided that there is found to be good cause.
Please note that a prisoner can file a petition to modify a sentence even if he is not a U.S. citizen. In this case, the MFR is a type of post-conviction relief under criminal immigration law that can remove the risk of:
An appeal of a sentence is a request by a prisoner for a higher court (that is, an appellate court) to modify a sentence imposed by a lower court (that is, the Superior Court, frequently referred to as the trial court).
Please note that an appeal is not a new trial. The appellate court does not:
The only job of the appellate court is to review the proceedings that took place in the trial court to determine if there were any legal errors that substantially affected the rights of a party.
On appeal, the appellate court can overturn a sentence if it determines two things. These are:
“Prejudice” is shown when there is a reasonable probability that the legal error made a difference in the outcome of the case.
In California, anyone who is in prison can bring a writ of habeas corpus petition (“HCP”) to challenge their imprisonment or the conditions under which they’re serving their sentence.
A California writ of habeas corpus is supposed to be what the law calls an “extraordinary remedy” – that is, it is supposed to be used only in extreme and unusual circumstances.
As a general rule, a prisoner cannot file a petition for habeas corpus unless he has done something that judges call “exhausting one’s remedies.” This means a party must file all possible appeals of a California criminal petition before bringing an HCP.
There are no strict deadlines for filing a habeas corpus petition…as long as it is filed while a party is in custody. However, a prisoner cannot delay filing a habeas corpus petition for too long. If he does, he will have to justify the delay in his petition.
A court may, on it owns behalf and without an MFR getting filed, decide to recall a sentence under California Penal Code 1170(d). It may do this within 120 days of imposing its sentence.
If a judge does recall a sentence, he/she removes it and orders a new sentence that can be no greater than the initial sentence.
In determining whether to recall a sentence, a judge may consider the following factors:
A court does have the authority to recall a sentence due to the health concerns of a prisoner.
Under California Penal Code 1170(e), the court may decide to recall a sentence if:
PC 1170(e) also allows a court to recall a sentence if:
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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