In limited circumstances, a defendant may move within 60 days of being sentenced or 60 days of the mandate on the direct appeal to have the sentencing court review the sentence and possibly modify or reduce the sentence. Florida Rule of Criminal Procedure 3.800(c) reads:
(c) Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or upon motion filed, within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal, or within 60 days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, within 60 days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. If review is upon motion, the trial court shall have 90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion. This subdivision shall not be applicable to those cases in which the death sentence is imposed or those cases in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.
There are a few caveats in terms of this rule. The sentencing court does not have to modify the sentence because a motion was filed but the court must address a timely motion. The defendant is not eligible for this type of relief if he has plead to a negotiated sentence with the State (i.e., a plea bargain or plea deal).[i] For the most part, the motion is not reviewable.[ii]
In practical terms, if the plea was open (meaning no agreement with the State) or the sentence was imposed at the conclusion of a trial resulting in a conviction, this may be an option to try to get some relief. The motion should present information, evidence, and/or testimony that was not previously presented to the sentencing court. This type of mitigation could be medical or psychological records. It could be that restitution has been paid and the victim is now whole. The evidence could also be the testimony of any victims that have changed their perspective or minds as to the harshness of the sentence. The evidence could also be defendant’s remorse and/or evidence of rehabilitation from prison. The sky is the limit, but it cannot be simply a gripe that the original sentence is too harsh – it has to be more.
If you are looking at this as an option or want an honest opinion about a specific sentence, then please do not hesitate to contact the Candela Law Firm and allow us to look into the matter for you.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, or a criminal appeal (either state or federal), we believe we can help you. Please contact www.candelalawfirm.com or call Anthony Candela at (813) 417-3645 to discuss your case. Please do not wait. The longer you wait the worse it could get without proper representation.
If you liked this article, please like it, and share the blog. All Trial Dog’s blogs can be found on www.ihearyoubarking.com or in the blog section of www.candelalawfirm.com Please like and share. Thanks.
The purpose of this blog is purely education/information and should not be viewed as creating an attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below, and thank you for reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)
Image source: pexels.com
No. 23-02 3.800(c)
[i] See State v. Hall, 2022 WL 17331643, at *2 (Fla. 2d DCA Nov. 30, 2022) (“Because the trial court could not undo [the Defendant’s] negotiated sentences, the mitigated sentences are illegal. In other words, the trial court could not unilaterally modify a contract to which it was not a party.”)
[ii] In extremely limited circumstances, an appellate court can review a dismissal of this type of motion. See Bailey v. State, 136 So. 3d 615 (Fla. 2d DCA 2013) (“An order dismissing a rule 3.800 motion as untimely is reviewable under this court’s certiorari jurisdiction. See Velazquez v. State, 917 So.2d 306, 306 (Fla. 2d DCA 2005). “A circuit court departs from the essential requirements of the law when it dismisses a timely rule 3.800(c) motion without considering the merits of the motion.” Kwapil v. State, 44 So.3d 229, 230 (Fla. 2d DCA 2010).”)