Sentencing Modification Hearings

The court upon sentencing a criminal defendant will mete out a sentence that is considered appropriate at the time. A defendant can be sentenced to probation and as a condition of probation s/he can receive up to one year in the county jail or the defendant can be sentenced to the state penitentiary for a determinant amount of years described by law. If the defendant is sentenced to probation and his/her exposure is up to one year in the county jail, the judge retains the power to modify the sentence.

The defendant can request our office to file a motion to modify the sentence, bring it back to court and ask the judge for good cause in the interest of justice to modify the sentence, which means change it. If the defendant is in custody, the court in certain circumstances can be asked that the defendant, having served a per

centage of his/her time in custody already, get his/her sentence modified so the remainder of the sentence can be served in a drug rehab center, work furlough program or house arrest program. If the defendant is not in custody, has special needs and has filled a percentage of his/her probation successfully, the judge has the power to lift certain restrictions that were formerly imposed.

If the defendant was sentenced to the state penitentiary, there are certain sections of the penal code that, if requested, the judge can if s/he wishes, and it is in the interest of justice, retain jurisdiction for up to 180 days to recall this defendant from prison to modify his/her sentence. This office always asks whenever possible for the judge to retain jurisdiction so that even if the defendant is sentenced on a state level there is a possibility of a recall. Many times when it is a close question as to whether or not a defendant should be sentenced to prison and the judge is leaning towards prison, there are certain sections of the penal code that allow for diagnostic studies at the prison.

The defendant is usually examined by psychologists, sociologists, social workers, and prison personnel and reports are sent back to the court after 3 or 4 months. If the majority opinion is that the defendant is not yet state penitentiary material, s/he can be recalled and sentenced to probation with or without time in the county jail, which would save the defendant years of his/her life. This office, whenever possible, exercises every option in favor of the defendant’s freedom at the earliest possible time.