Criminal Defense Sentence Modification Motion

The experienced criminal defense attorneys of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., have been serving the community for over 30 years and are experienced in all matters of criminal defense, including Sentence Modifications. A sentence modification deals specifically with the sentence imposed by the judge, not the decision of guilt or innocence. Sentencing issues may be complex and difficult to understand, therefore, it is important to seek the advice of an experienced criminal defense attorney.

If you or someone you has been sentenced excessively, call us 24 hours a day, 7 days a week at (866) 262-4874 or locally at (305) 858-9550. The criminal defense attorneys of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., represent clients in Miami, Broward, Palm Beach and throughout the State of Florida on all criminal defense issues, including Sentence Modifications. Contact us now for a free consultation.

921.002 The Criminal Punishment Code.

The Criminal Punishment Code shall apply to all felony offenses, except capital felonies, committed on or after October 1, 1998.

(1) The provision of criminal penalties and of limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature. The Legislature, in the exercise of its authority and responsibility to establish sentencing criteria, to provide for the imposition of criminal penalties, and to make the best use of state prisons so that violent criminal offenders are appropriately incarcerated, has determined that it is in the best interest of the state to develop, implement, and revise a sentencing policy. The Criminal Punishment Code embodies the principles that:

(b) The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment.

(c) The penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense.

(d) The severity of the sentence increases with the length and nature of the offender's prior record.

(e) The sentence imposed by the sentencing judge reflects the length of actual time to be served, shortened only by the application of incentive and meritorious gain-time as provided by law, and may not be shortened if the defendant would consequently serve less than 85 percent of his or her term of imprisonment as provided in s. 944.275(4)(b)3. The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.

(f) Departures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.

(g) The trial court judge may impose a sentence up to and including the statutory maximum for any offense, including an offense that is before the court due to a violation of probation or community control.

(h) A sentence may be appealed on the basis that it departs from the Criminal Punishment Code only if the sentence is below the lowest permissible sentence or as enumerated in s. 924.06(1).

(i) Use of incarcerative sanctions is prioritized toward offenders convicted of serious offenses and certain offenders who have long prior records, in order to maximize the finite capacities of state and local correctional facilities.

(2) When a defendant is before the court for sentencing for more than one felony and the felonies were committed under more than one version or revision of the former sentencing guidelines or the code, each felony shall be sentenced under the guidelines or the code in effect at the time the particular felony was committed. This subsection does not apply to sentencing for any capital felony.

(3) A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026. The level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence. When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation. Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.

(4)(a) The Department of Corrections shall report on trends in sentencing practices and sentencing score thresholds and provide an analysis on the sentencing factors considered by the courts and shall submit this information to the Legislature by October 1 of each year, beginning in 1999.

(b) The Criminal Justice Estimating Conference, with the assistance of the Department of Corrections, shall estimate the impact of any proposed change to the Criminal Punishment Code on future rates of incarceration and on the prison population. The Criminal Justice Estimating Conference shall base its projections on historical data concerning sentencing practices which have been accumulated by the Department of Corrections and other relevant data from other state agencies and records of the Department of Corrections which disclose the average time served for offenses covered by any proposed changes to the Criminal Punishment Code.

(c) In order to produce projects that are either required by law or requested by the Legislature to assist the Legislature in making modifications to the Criminal Punishment Code, the Department of Corrections is authorized to collect and evaluate Criminal Punishment Code scoresheets from each of the judicial circuits after sentencing. Beginning in 1999, by October 1 of each year, the Department of Corrections shall provide an annual report to the Legislature that shows the rate of compliance of each judicial circuit in providing scoresheets to the department.

RULE 3.850. MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE

(a) Grounds for Motion. The following grounds
may be claims for relief from judgment or release from
custody by a person who has been tried and found
guilty or has entered a plea of guilty or nolo contendere
before a court established by the laws of Florida:
(1) The judgment was entered or sentence was
imposed in violation of the Constitution or laws of the
United States or the State of Florida.
(2) The court did not have jurisdiction to enter the
judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.
(b) Time Limitations. A motion to vacate a sentence
that exceeds the limits provided by law may
be filed at any time. No other motion shall be filed or
considered pursuant to this rule if filed more than 2
years after the judgment and sentence become final in a
noncapital case or more than 1 year after the judgment
and sentence become final in a capital case in which a
death sentence has been imposed unless it alleges that
(1) the facts on which the claim is predicated were
unknown to the movant or the movant's attorney
and
could not have been ascertained by the exercise of due
diligence, or
(2) the fundamental constitutional right asserted
was not established within the period provided for
herein
and has been held to apply retroactively, or
(3) the defendant retained counsel to timely file a
3.850 motion and counsel, through neglect, failed to
file the motion.
(c) Contents of Motion. The motion shall be under
oath and include:
(1) the judgment or sentence under attack and the
court which rendered the same;
(2) whether there was an appeal from the judgment
or sentence and the disposition thereof;
(3) whether a previous postconviction motion has
been filed, and if so, how many;
(4) if a previous motion or motions have been
filed, the reason or reasons the claim or claims in the
present motion were not raised in the former motion or
motions;
(5) the nature of the relief sought; and
(6) a brief statement of the facts (and other conditions)
relied on in support of the motion.
This rule does not authorize relief based on grounds
that could have or should have been raised at trial and,
if properly preserved, on direct appeal of the judgment
and sentence.
(d) Procedure; Evidentiary Hearing; Disposition.
On filing of a rule 3.850 motion, the clerk shall forward
the motion and file to the court. If the motion, files, and
records in the case conclusively
show that the movant
is entitled to no relief, the motion shall be denied without
a hearing. In those instances when the denial is not
predicated on the legal insufficiency of the motion on
its face, a copy of that portion of the files and records
that conclusively shows that the movant is entitled to
no relief shall be attached to the order. Unless the motion,
files, and records of the case conclusively show that
the movant is entitled to no relief, the court shall order
the state attorney to file an answer or other pleading
within the period of time fixed by the court or to take
such other action as the judge deems appropriate. The
answer shall respond to the allegations of the motion.
In addition it shall state whether the movant has used
any other available state remedies including any other
postconviction motion under this rule. The answer shall
also state whether an evidentiary hearing was accorded
the movant. If the motion has not been denied at a previous
stage in the proceedings, the judge, after the answer
is filed, shall determine whether an evidentiary hearing
is required. If an evidentiary hearing is not required, the
judge shall make appropriate disposition of the motion.
If an evidentiary
hearing is required, the court shall grant
a prompt hearing thereon and shall cause notice thereof
to be served on the state attorney, determine the issues,
and make findings of fact and conclusions
of law with
respect thereto. If the court finds that the judgment was
rendered without jurisdiction, that the sentence imposed
was not authorized by law or is otherwise open to collateral
attack, or that there has been such a denial or
infringement of the constitutional
rights of the movant
as to render the judgment vulnerable to collateral attack,
the court shall vacate and set aside the judgment and
shall discharge or resentence the movant, grant a new
trial, or correct the sentence as may appear appropriate.
(e) Movant's Presence Not Required. A court may
entertain and determine the motion without requiring
the production of the movant at the hearing.
(f) Successive Motions. A second or successive
motion may be dismissed if the judge finds that it fails
to allege new or different grounds for relief and the
prior determination was on the merits or, if new and
different grounds are alleged, the judge finds that the
failure of the movant or the attorney to assert those
grounds in a prior motion constituted an abuse of the
procedure governed by these rules.
(g) Appeal; Rehearing; Service on Movant. An appeal
may be taken to the appropriate appellate court from
the order entered on the motion as from a final judgment
on application for writ of habeas corpus. All orders denying
motions for postconviction
relief shall include a statement
that the movant has the right to appeal within 30
days of the rendition of the order. A petitioner may seek
a belated appeal upon the allegation that the petitioner
timely requested counsel to appeal the order denying
petitioner's motion for postconviction relief and counsel,
through neglect, failed to do so. The movant may file a
motion for rehearing of any order denying a motion under
this rule within 15 days of the date of service of the order.
The clerk of the court shall promptly serve on the movant
a copy of any order denying a motion for postconviction
relief or denying a motion for rehearing noting thereon the
date of service by an appropriate certificate of service.
(h) Habeas Corpus. An application for writ of habeas
corpus on behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this rule shall
not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court that
sentenced the applicant or that the court has denied the
applicant relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of the applicant's detention.

“Disclaimer: The information on this page does not represent legal advice. Florida Statues obtained from Online Sunshine, www.leg.state.fl.us, the official site of the Florida Legislature. Because the law is continually changing, some of the provisions contained herein may be out of date. Contact the experienced criminal defense attorneys of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A. 24 hours a day, 7 days a week, toll free at (866) 262-4874 begin_of_the_skype_highlighting              (866) 262-4874      end_of_the_skype_highlighting or locally at (305) 858-9550.

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Call today for a free consultation with a Miami Criminal Lawyer if you or a loved one are in need of a criminal defense attorney in Aventura, Bal Harbour, Bay Harbor Islands, Biscayne Park, Boca Raton, Broward County, Coconut Grove, Cooper City, Coral Gables, Coral Springs, Cutler Bay, Dade County, Davie, Doral, El Portal, Florida City, Fort Lauderdale, Golden Isles, Goulds, Hialeah, Hieleah Gardens, Hollywood, Homestead, Indian Village, Islandia, Kendall, Key Biscayne, Leisure City, Medley, Miami, Miami Beach, Miami Gardens, Miami Lakes, Miami Shores Village, Miami Springs, Miramar, North Bay Village, North Miami, North Miami Beach, Opa-Locka, Palm Beach County, Palmetto Bay, Pinecrest, Pinewood, Plantation, Princeton, Richmond Heights, South Miami, Sunny Isles Beach, Surfside, Sweetwater, Virginia Gardens, West Miami, Westchester, Weston, Westwood Lake or any other city in South Florida, throughout the State or all over the country.”