In some cases, there is a valid cause for a judge to reconsider a sentence they handed down. Thanks to Colorado Rule 35(b), there is a proper channel to request such a reconsideration. Below are some frequently asked questions regarding this rule.
What is Colorado Rule 35(b)?
This rule is one of many Colorado Rules of Criminal Procedure and it allows newly sentenced individuals to seek recourse if they believe their punitive sentence is unfair. It does this by creating a formalized process called a Motion for Reconsideration. Unfortunately, there are also many technical legal questions surrounding this rule. Continue reading for answers to many of these questions.
Why does Colorado Rule 35(b) exist?
Under CRS 18-1-102.5, there are multiple statements regarding the purposes of sentencing and the rules surrounding it. Three of those statements pertinent here are, in summary:
(1) To ensure the sentence matches the severity of the crime.
(2) To take into account an individual’s unique circumstances and select a sentence that deters them from further criminal activity.
(3) To promote the acceptance of responsibility by offenders and aid in rehabilitation for a successful reentry into society.
Colorado Rule 35(b) helps to ensure these goals by giving an offender the opportunity to convince the judge that their official sentence was unnecessarily harsh. Through a Motion for Reconsideration, an offender can petition for their original sentencing judge to review the sentence.
Who is eligible to file a Motion for Reconsideration?
A conviction carrying any sentence can be petitioned for reconsideration under Rule 35(b) including but not limited to sentences of prison, probation, fines, and rehabilitation classes. However, one of the following three conditions must also be true.
(1) The motion must be filed within 120 days of its original imposition
(2) The motion must be filed within 120 days of a receipt of remittitur
(3) The motion must be filed within 120 days of any judgement which has the effect of upholding a conviction or sentence.
What does the process for filing a Motion for Reconsideration look like?
First and foremost, the motion must be submitted in writing. In this motion any extenuating circumstances surrounding the crime should be included along with any new information that has surfaced since the trial.
What types of information should be included?
Generally, if the information supports the argument that the original sentence was too harsh or that a shorter sentence is more fitting for the crime, it should be included. This could include evidence of a particularly troubled history or life situation, evidence of cooperation with law enforcement, reasoning why a lesser sentence would do a public good, or evidence of good character and sufficient rehabilitation during time in prison. It is important to note that good behavior in prison alone is not enough for a Motion for Reconsideration to be approved.
Once the motion is filed, is any action required?
If the court requests additional information, that information must be provided. There may also be a hearing to determine whether or not the motion should be granted. Additionally, it is the petitioner’s duty to ensure that there is a ruling on the motion. If a there is an unreasonable delay in the ruling of the motion, the motion is considered abandoned, the presiding court loses their jurisdiction to make a ruling, and the motion fails. Therefore, someone must constantly follow up with the court to ensure the motion is being processed.
What are the potential outcomes?
Since the ruling on a Motion for Reconsideration is completely up to the judge’s discretion, there are a few different potential outcomes.
(1) After the consideration of the motion itself and all relevant documents, the motion may be denied without a hearing. In this case the original sentence will stand.
(3) After a hearing occurs, the motion may be denied. If denied, the original sentence will stand.
(3) After a hearing occurs, the motion may be approved. In this case, the sentence will be reduced, although it is impossible to predict by how much as this is also up to the judge’s discretion.
It is also important to clarify that the judge is prohibited from increasing the original sentence. In no scenario will the sentence be increased.
Does this process require a defense attorney?
Although it is not strictly necessary to hire a defense attorney, it is highly recommended to do so as the legal questions surrounding Colorado Rule 35(b) are extremely complicated and technical. With an experienced Denver criminal defense attorney on your team, you will have a guide helping you through the process, and your motion has the best chance of success. Therefore, if you or someone you know needs to file a Motion for Reconsideration or needs a relentless Denver criminal defense attorney for any other reason, contact Krizman Law right now at 303.529.2677.
Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Contact him today at 720.819.7317.