Motion to Reduce Sentence
After being sentenced, the defendant must act quickly when seeking a motion to reduce or modify the sentence. The motion to reduce or modify the sentence is filed under Florida Rule of Criminal Procedure 3.800(c). The motion is often filed in conjunction with other motions including a motion to correct an illegal sentence, a motion for reconsideration, a motion for rehearing, or a notice of appeal.
The motion to modify or reduce the sentence asks the trial court to reconsider its earlier sentence in light of pertinent facts, such as the possible sentencing range and the nature of the charges, as well as the effect the sentence will have on the defendant’s family and the cost of incarceration. These motions appeal to the discretion of the sentencing court under rule 3.800(c), but do not allege any error or otherwise seek correction of the judgment and sentence under Florida Rule of Criminal Procedure 3.800(b)(1).
Under Florida Rule of Criminal Procedure 3.800(c), the defendant is permitted to file a motion asking the trial court to reduce or modify their sentence, but the motion must be filed within 60 days of the sentencing. The motion can also be filed within 60 days of the date the mandate is returned for a direct appeal to a higher court.
The rules were recently amended to clarify the timeline for the court ruling on a timely filed motion. The rule now gives the court 90 days from the date the motion is filed to enter a ruling, although that time can be extended by agreement of the parties or as extended by the trial court.
Because of these strict timelines, you need an attorney who can help you file all of the appropriate motions, schedule the hearing on the motion quickly, and appear with you at the hearing so that additional information can be presented to the court about why it is in the interest of justice to reduce or modify the sentence.
Attorneys for a Motion to Reduce Sentence in Tampa, FL
In many cases, it makes sense to file a motion to reduce or modify a sentence, especially when the court imposes a sentence that was unexpected. The sentence might be unexpectedly harsh because it was after an open plea without any negotiated terms. These motions are also common in violation of probation case when a negotiated plea is rare. In a VOP case, the defendant typically enters an admission without having any idea what sentence the court might impose.
Keep in mind that after the motion is filed, the trial judge cannot reduce the sentence to one which could not have been originally imposed. So relief under Rule 3.800(c) is not available when the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.
After hearing the motion, the judge cannot impose a more onerous sentence as explained in the committee notes in Florida Rule of Criminal Procedure 3.800(c). For these reasons, there is little downside to filing the motion.
An attorney must act quickly to find additional information that can be presented to the court. We can help you file a motion for the reduction of your sentence within the sixty-day window after your sentencing or mandate. We can also file a motion to extend the time the court has to rule on the motion or reach an agreement with the prosecution on extending the time.
With offices in Tampa in Hillsborough County and New Port Richey in Pasco County, FL, our attorneys represent clients throughout the greater Tampa Bay area. If you were sentenced harshly by the trial court and believe there are grounds to reduce or modify the sentence, then contact an experienced criminal defense attorney at Sammis Law Firm to discuss your case.
Call (813) 250-0500.
When Must the Motion to Reduce or Modify the Sentence Be Filed?
These motions must be filed within 60 days after the sentence is imposed or after the trial court receives the appellate mandate from the direct appeal. The court maintains jurisdiction to hear a timely filed motion to mitigate under rule 3.800(c) even if the motion is filed within hours prior to the expiration of the sixty-day time frame. In Bailey v. State, 136 So.3d 615, 616 (Fla. 2d DCA 2013), the court found that a “rule 3.800(c) motion is considered filed when entrusted to prison officials for further delivery or processing.” When an attorney files the motion, it is considered filed when it is received by the clerk’s office.
If the defendant does not file the motion within that 60-day time frame, then the trial court forever loses jurisdiction to modify or reduce the sentence.
Deadlines for Filing the 3.800(c) Motion
For a reduction or modification of a sentence in a criminal case, Florida Rule of Criminal Procedure 3.800(c) provides that the court may reduce or modify…a legal sentence imposed by it, sua sponte, or upon motion filed, within 60 days after the imposition” of the judgment and sentence. The rule also allows the motion to reduce or modify to be filed 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.” Finally, the motion to modify or reduce the sentence may be filed within 60 days of any of the following events:
- 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
- after a higher court has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari when further appellate review was sought.
If the court’s review occurs because of the defendant’s motion, the trial court has ninety (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.
The Motion to Reduce Sentence Doesn’t Extend the Time to File the Notice of Appeal
The direct criminal appeal seeks review of a judgment and sentence and must be filed within 30 days. When the notice of direct appeal is untimely, it must be dismissed for lack of jurisdiction as provided in Fla. R. App. P. 9.140(b)(3). Keep in mind that the time for filing the notice of appeal is not extended by a timely filed motion for reduction of sentence.
On the other hand, the time to extend the time to appeal are listed in Fla. R. App. P. 9.020(i). Under that rule, motions to correct error or otherwise seek correction of the judgment and sentence under Florida Rule of Criminal Procedure 3.800(b)(1) can extend the time to appeal or suspend rendition.
The History of the Rule for Modifying or Reducing a Sentence
Prior to amendments to the rule in 1996, these motions were filed pursuant to Florida Rule of Criminal Procedure 3.800(b), which is now Florida Rule of Criminal Procedure 3.800(c). Specifically, in 1996, a new subsection (b) (“Motion to Correct Sentencing Error”) was added and the prior 3.800(b) was renumbered as subsection (c). Schlabach v. State, 37 So. 3d 230, 233 (Fla. 2010).
Specifically, in 1996, a new subsection (b) (“Motion to Correct Sentencing Error”) was added and the prior 3.800(b) was renumbered as subsection (c).
In Schlabach v. State, 37 So. 3d 230, 240 (Fla. 2010) the court held that when the motion to reduce the sentence is filed within 60 days, the trial court has the authority to enlarge the 60 day period for making ruling providing the matter is resolved within a reasonable time. Enlarging the time is necessary when the court acts in the interest of justice to consider the record more carefully and uses due diligence in conducting the mitigation proceedings and entering an order within a reasonable time.
In this case, the Florida Supreme Court recognized the public policy of requiring a ruling within a “reasonable time” recognizes that the limit is a matter of respect for the separation of powers. This policy recognizes that there comes a time when the “judiciary’s power to reduce a lawful sentence ends and vests in the executive department.” Id. at 234.
The Florida Bar’s Criminal Procedure Rules Committee has consider the issue of time limitations under rule 3.800(c) and considered proposing to the Florida Supreme Court an amendment providing a reasonable time limitation for a defendant to file a rule 3.800(c) motion, as well as an appropriate time limit for the trial court to rule upon such motions or to sua sponte reduce or modify the sentence.
This policy for giving the court a reasonable time to rule on the motion recognizes that it is “unrealistic to expect that a court will always be able to rule on a motion to modify sentence within the short deadline unless a system is in place to bring the matter promptly to the trial court’s attention. The time limit is especially onerous for the trial court if the motion is filed close to the expiration of the sixty days.” Schlabach v. State, 37 So. 3d 230, 239 (Fla. 2010).
For this reason, the Florida Supreme Court held that “the trial court does not lose jurisdiction solely because no hearing was scheduled and no order was entered by the trial court within the sixty days. To hold that a court loses jurisdiction to modify a sentence simply because the judge was unable to review the motion and hold a hearing within the sixty-day time limit does not comport with the equitable intent of the Florida Rules of Criminal Procedure…. as long as the trial court rules on the motion within a reasonable time.” This ruling balanced the interests of promoting justice and the efficient operation of the judicial system. Id.
The Writ of Certiorari When the Motion to Reduce is Denied
It is well-established that “[a]n order denying, on the merits, a motion for reduction of sentence under Florida Rule of Criminal Procedure 3.800(c) … is not an appealable order.” Clewis v. State, 715 So.2d 1129, 1129 (Fla. 3d DCA 1998). Since the rule 3.800(c) motion is directed to a circuit court’s discretion and few grounds exist for the court’s ruling cannot be appealed. Nevertheless, the ruling is subject to certiorari review “in an extraordinary case.” Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996).
Florida law provides for several circumstances in which one side might decide to appeal after a ruling on a Rule 3.800(c) motion.
First, if the court grants a Rule 3.800(c) motion that reduces a sentence imposed pursuant to a negotiated plea, then the order constitutes an appealable order and the state might appeal. In State v. Jordan, 783 So.2d 1179, 1181 (Fla. 3d DCA 2001), the court found that the State, pursuant to section 924.07, Florida Statutes, is authorized to appeal two types of sentences:
- a sentence that is illegal; and
- a sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921.
For this reason, a reduced sentence granted by a trial court which constitutes a downward departure sentence is appealable by the State under section 924.07(1)(a), Florida Statutes.
Second, the defendant can appeal from the denial of the motion to reduce sentence occurs by filing a petition for writ of certiorari. The petition for a writ of certiorari is appropriate when the trial court fails to consider the rule 3.800(c) motion on the merits or otherwise issues a ruling that results in a departure from the essential requirements of law.
When the court improperly fails to issue a ruling on the merits, the higher court can grant the petition for writ of certiorari, vacate the order dismissing the defendant’s rule 3.800(c) motion, and remand with directions to consider the motion on its merits. See Johnson v. State, 1D17-3432, 2018 WL 2399347, at *1 (Fla. 1st DCA May 25, 2018).
The most common reason for seeking certiorari review of the trial court’s denial of a motion to reduce or modify the sentence occurs when the trial court dismissed the motion as untimely. As discussed above, the motion is not untimely when it is filed within sixty days of the date that the Court issued the mandates in the direct appeal.
Finding a Lawyer for the Rule 3.800(c) Motion
Contact us about filing a timely motion to reduce the sentence if the result was unexpected. We can fight for a reduction in your sentence at the hearing which is initiated before the sixty-day time limit expires. We also file a motion for enlargement of time on behalf of the trial court in case the trial court is unable to dispose of the motion within the required time.
An attorney can file a motion to have the case set for a hearing so that the motion can be heard within the ninety-day period or within a reasonable time period thereafter. When the court is unable to rule upon a timely filed motion within the allotted time, the court should sua sponte enlarge the time for ruling on the motion. To be safe, the defense attorney should also file a motion asking the court to enlarge the time.
With offices in downtown Tampa in Hillsborough County, FL, and in New Port Richey in Pasco County, FL, contact us to discuss your case. Call (813) 250-0500.
This article was last updated on Friday, June 15, 2018.