Resentencing – Can I get my sentence modified in Nevada?

Getting your Nevada criminal sentence shortened is always an uphill battle, but it is possible. The four methods I use to try to persuade a judge to grant a resentencing are:

1. A motion to modify the sentence;
2. An appeal of the sentence;
3. A commutation; and/or
4. A petition for writ of habeas corpus

1. A Motion to Modify a Criminal Sentence

A motion to modify a criminal sentence under NRS 176.555 asks the trial judge to change the sentence on the grounds that:

1. The sentence that the judge ordered is different than the sentence being imposed; or
2. The penalties are harsher than what the criminal statute allows; or
3. The sentence was not calculated accurately.

There is no time limit to file a motion to modify an unlawful criminal sentence. You can file it at any time.¹

2. Appealing a Criminal Sentence

An appeal is asking a higher court to review the trial court’s ruling. In the same way you may appeal your conviction after being found guilty at trial, you can also appeal your sentence.

For example, if you were sentenced in Las Vegas Justice Court, you would appeal to the Eighth Judicial District Court. Or if you were sentenced in the Eighth Judicial District Court, you would appeal to the Nevada Supreme Court (or, in some cases, to the Nevada Court of Appeals).

Process and Deadlines

The general rule is that you have 30 days after your case’s entry of judgment to file a “notice of appeal.” At that point the court would prepare a “record” of the case, which includes transcripts of the proceedings such as the sentencing hearing.

Then you would have 120 days to file the “appellate brief” that argues why the appellate judges should lower the sentence. Afterwards the prosecution has the opportunity to file a response, which you can then reply to.

The appellate court may elect to hold oral arguments: This is where your defense attorney and the prosecution would argue for and against a sentence modification, respectively.

Finally, the appellate court judges would decide either to affirm the original sentence or remand the case down to the trial court to modify the sentence.²

Like guilty verdicts, excessive sentences may be appealed to a higher court.

3. Commutation

You may apply to the Nevada Pardons Board for a commutation (reduction) of sentence. There are four main reasons why the Board may choose to commute your sentence:

1. You are in prison, and you are not up for parole less than one year after the date of the next Pardons Board meeting. Though even then, you may be able to get a commutation sooner by showing “extraordinary circumstances.”
2. You are out on parole, and you served at least 10 years of a life sentence or one-half of a non-life sentence.
3. You are on death row, and either: You were under 18 at the time of the crime, or the conviction occurred prior to July 1, 1995.
4. You were serving a life sentence without the possibility of parole, and either: You were under 18 at the time of the crime, or the conviction occurred prior to July 1, 1995.³

4. A Writ of Habeas Corpus

You typically have one year after the judgment of conviction to file a writ of habeas corpus with the Nevada Supreme Court. This writ claims that your sentence is invalid because of either the following reasons:

1. The trial court overstepped the bounds of its jurisdiction;
2. Even if the sentence was legal when the trial court handed it down, circumstances since changed that justifies your release;
3. Defective legal procedures void the sentence;
4. The sentence is illegal;
5. You are being illegally detained by the warden;
6. No judgment, order, or law authorized the sentence;
7. There was no probable cause to incarcerate you;
8. The law that caused you to be convicted and sentenced is unconstitutional or applied in an unconstitutional way; or
9. You were deprived of your constitutional rights.⁴

Writs of habeas corpus are typically the last resort when trying to get a case re-sentenced.

Additional Reading

For more in-depth information about sentence reductions, refer to these scholarly articles:

• Reviewing Leniency – The University of Chicago Law Review.
• The Sentencing Court’s Discretion to Depart downward in Recognition of a Defendant’s Substantial Assistance: A Proposal to Eliminate the Government Motion Requirement – Indiana Law Review.
• Sentence Reduction as a Remedy for Prosecutorial Misconduct – Georgetown Law Journal.
• Race, remorse, and sentence reduction: Is saying you’re sorry enough? – Justice Quarterly.
  
• First Thoughts about Second Look and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision – University of Toledo Law Review.

Legal References