Motion for Reconsideration – Rule § 35(b) in Colorado

In Colorado, a motion for reconsideration is a request for a sentence reduction made by a defendant who has already been convicted and sentenced for a criminal offense. Also called 35(b) proceedings, the process gives defendants a second chance to argue for lesser penalties.

In deciding whether to grant a 35(b) request for a lesser sentence, judges

• reexamine the relevant evidence and
• may even consider new evidence.

Some factors that may persuade a judge to lower a sentence include whether

1. the defendant has been rehabilitated,
2. the punishment matches the crime, and
3. there are mitigating circumstances that put the defendant in a more positive light.

Below our Denver Colorado criminal defense attorneys will answer the following key questions:

• 1. What is a motion for reconsideration in Colorado?
• 2. What is the court process?
• 3. How can I win the motion?
• 4. How do I file the motion?
• 5. When do I bring the motion?
• 6. What happens if the motion is granted?
• 7. What happens if the motion is denied?
• 8. Can the judge increase my sentence?
• 9. Can a motion for reconsideration stop deportation?

Also, refer to our articles about motions for a new trial in Colorado and post-conviction relief in Colorado.

Defendants who get convicted of (and sentenced for) a crime in Colorado may file a motion for reconsideration in an attempt to reduce their sentence.

1. What is a motion for reconsideration in Colorado?

Under Colorado Rule 35(b), a motion for reconsideration is when defendants who have been convicted of and sentenced for a crime ask the court to lessen the sentence.¹ (The motion is often called a “Rule 35b motion” or just a “35b motion”).

Denver criminal defense attorney Michael Becker illustrates:

Example:  Gene from Denver gets convicted of the Colorado crime of selling 14 grams or less of cocaine, which is a level 3 drug felony. The judge sentences Gene to the maximum prison sentence of four years because he seemed unrepentant at his sentencing.

In his motion for reconsideration, Gene argues (1) that this was only his first offense, (2) that he was still in the process of detoxing at his sentencing, and (3) that his behavior in prison so far has been impeccable. Based on these factors, the judge lowers his sentence to the minimum prison sentence of two years.

In the above example, the judge decided that Gene deserved a laxer sentence. But note that a different judge may not have been swayed by Gene’s arguments. Judges are under no obligation to grant a lesser sentence as long as the original sentence was lawful.

2. What is the court process?

Anyone who is convicted of and sentenced for a crime in Colorado may file a motion for reconsideration. However, the judge has complete discretion over whether to reduce the punishment.

Note that a person does not have to be sentenced to prison to be eligible to file a motion for reconsideration. Defendants who have been sentenced just to

• probation,
• fines, and/or
• classes can also ask the judge to reconsider their sentences.²

3. How can I win the motion?

Several reasons may justify getting a sentence reduced in Colorado. Some of the reasons include the following:

• The penalties were unduly harsh considering the facts of the case.
• There are “mitigating factors” that warrant a laxer punishment (such as that the defendant had a rough childhood, or the defendant was repentant).
• It is in the public interest to grant the defendant a lesser sentence.
• The defendant’s character has been rehabilitated by his/her time in prison so far.

Colorado courts may consider circumstances that have occurred subsequent to the sentencing that may be favorable to the defendant. Examples of such circumstances are

• that the defendant has been a model prisoner, or
• that the defendant has taken responsibility.³

4. How do I file the motion?

Motions for consideration must be made in writing. The motion may also include new evidence that has surfaced after the sentencing hearing in Colorado court.

Once the motion for reconsideration is filed, the judge may rule on it with or without holding a hearing on the matter.⁴

5. When do I bring the motion?

It depends on whether the defendant appeals the trial verdict. If the defendant does not appeal, the deadline for filing a motion for reconsideration is 126 days after the defendant is sentenced. If the defendant does appeal, the deadline is 126 days after the appellate decision.⁵

Courts are instructed to rule on motions for reconsideration within a “reasonable time.” But if the court is slow to rule on the motion, the defendant is obligated to make reasonable efforts to contact the court about handing down a decision. Otherwise, the court will consider the 35(b) motion “abandoned” and disregard it.⁶

Note that defendants should not pursue motions to reconsider and appeals at the same time. If an appeal is pending and the defendant has filed a motion to reconsider, the motion will be moot. So defendants need to decide with their defense attorneys whether to file an appeal or a motion to reconsider first.⁷

6. What happens if the motion is granted?

The judge will vacate the original sentence and hand down a lesser punishment. Depending on the case, this lesser sentence may include a

• shorter prison sentence,
• probation,
• fines, and/or
• classes.⁸

7. What happens if the motion denied?

Then the original penalties will stand, but the defendant may still appeal the ruling.

8. Can the judge increase my sentence?

No. Judges may not increase the sentence when a defendant files a motion for reconsideration.⁹

9. Can a motion for reconsideration stop deportation?

It depends on the case, but potentially yes. Legal aliens in Colorado who have been convicted of deportable crimes are susceptible to being removed from the U.S…

But if the court significantly reduces their sentence after a motion for reconsideration, the conviction might no longer be considered deportable. Learn more about the criminal defense of immigrants in Colorado.

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