Modification of Sentence

After a person has been sentenced by a Court in a criminal case, sentence modification is a possibility for most convictions. I.C. § 35-38-1-17 governs sentence modifications, and a person is not able to waive the right to sentence modification in a plea agreement. Credit restricted felons (certain child molesting offenses) are not permitted to modify their sentence. A person who is not a violent criminal may file a petition for sentence modification (1) not more than one (1) time in any three hundred sixty-five (365) day period and (2) a maximum of two (2) times during any consecutive period of incarceration without the consent of the prosecuting attorney. A person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification without the consent of the prosecuting attorney. After the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.

I.C. § 35-38-1-17(e) states: “The court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing. However, if the convicted person was sentenced under the terms of a plea agreement, the court may not, without the consent of the prosecuting attorney, reduce or suspend the sentence and impose a sentence not authorized by the plea agreement.” Sentence modification is totally at the discretion of a Judge. Major purposes that sentence modification serve are to allow the court to reduce an overly harsh sentence, show leniency when it is warranted, and better fit a sentence to each individual. Circumstances conducive to modification include positive response to a sentence, good behavior, rehabilitation or a job opportunity, and life circumstances that justify modification, such as a need to support a family or a medical condition. The Courts generally take plea agreements and the aforementioned section of the I.C. very seriously and will not modify a sentence in a plea agreement unless a prosecutor agrees to it. Thus, it is always a very good idea for one’s attorney to approach and negotiate with a prosecutor before filing for sentence modification if they were sentenced according to a plea agreement.

If you are serving a sentence and interested in sentence modification, contact me today.


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