Motions to reduce or modify a sentence in Florida can be an effective way to help improve a defendant’s situation. I am often asked what can be done to reduce a sentence after it has been imposed. The answer depends on the circumstances that led to the sentence and how long it has been since you were sentenced.

If you were sentenced as part of a plea agreement, where you and the prosecutor agreed on what the sentence would be after you pled guilty, your options are pretty limited. If less than 30 days have passed since you were sentenced, you may be able to withdraw your plea for a variety of reasons, though those reasons center around constitutional violations and jurisdictional problems. If more than 30 days have passed, but it has been less than 2 years, you are limited to arguing your attorney screwed up or the sentence itself is illegal. If your attorney failed to properly advise you and you would have acted differently (not taken the deal) had you been properly advised, you can file a motion with the court asking to withdraw your plea because your lawyer was ineffective. If the sentence imposed was actually an illegal sentence, you can file a motion to correct the sentence.

Sometimes your sentence resulted from either a guilty verdict at trial or pleading guilty to the judge without an agreement in place as to the sentence. Such a plea is sometimes referred to as an open plea. In these situations, in addition to the remedies previously described, you can also file a motion to mitigate your sentence. This motion must be filed within 60 days of your sentencing date. You can also postpone filing this motion until you have exercised your right to appeal.

A motion to mitigate asks the judge who sentenced you to reconsider the sentence. These motions are most effective when you have information to provide to the judge that wasn’t available or presented at the time the judge imposed the original sentence. The beauty of filing such a motion is the judge cannot increase your sentence because doing so would violate the double jeopardy clause of the Constitution.

The other option that you have when you have been sentenced following an open plea or a trial is the right to appeal. If you’ve lost a trial, your appeal will not only address the legality of your sentence, but also the various rulings made by the judge during the trial. Winning your appeal could result in a new trial, a new sentencing hearing or even an acquittal in some circumstances.

Before pursuing any of these avenues, you should consider not only whether you can challenge the disposition, but whether you should. For instance, if you were facing 30 years in prison and struck a deal with the prosecutor where you agreed to do 3 years in prison, you may not want to withdraw your plea even if you can. Both prosecutors and judges like finality. That is to say, they are busy and have lots of cases and the last thing they want to see is a case on their docket that they thought was over. When you file a motion to withdraw your plea, you should assume it is going to upset the prosecutor and the judge. In doing so, you should assume you won’t be getting another offer and that you are going to trial. And if you lose that trial, the judge and prosecutor will likely try to find a way to sentence you to at least the time you agreed to do in the plea. So, if you plan to withdraw your plea, your plan should include what you will do if the judge agrees to give you another shot. In other words, be careful what you ask for because you may just get it.

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