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Post-Sentencing Motions Criminal Defense Attorneys May File



The trial and sentencing hearing are rarely the last word in a criminal case. Defendants and their attorneys have a number of options available in terms of post sentencing motions. These motions sometimes set a defendant free, but are more likely to get a sentence reduced when used correctly.

Withdrawal of a Guilty Plea

Courts tend to view this motion post-sentencing unfavorably, but there can be valid reasons for using it:

  • The guilty plea was coerced.
  • The prosecutor did not adhere to the terms of the plea agreement.
  • The defendant's lawyer did not provide competent advice befitting a criminal trial (ineffective assistance of council).

If you feel you were not treated fairly in regards to your plea, a knowledgeable criminal lawyer can help you decide if you have grounds for this motion.

Motion for a New Trial

This is exactly what it sounds like: a request to retry the case. There is usually only a short time after trial—a few days or weeks—to file this motion. You can not file any other motions until this one has been decided.

The same judge who presided at the trial will generally decide on this motion, and will usually only grant it for very specific reasons, such as:

  • There was a significant legal error in the handling of the case.
  • There was jury or prosecutorial misconduct.
  • New evidence that could be significant to the case has been discovered.

A motion for a new trial rarely succeeds, but many attorneys use it as a way to preserve certain arguments that they will use in later motions.

Modification of Sentence

In most states, a defendant has the right to request that the sentencing judge reconsider the sentence. The motion for modification of sentence does not dispute the guilty verdict, only the sentence imposed.

There are basic requirements involved in this motion:

  • A new factor exists. In other words, there are highly relevant facts that were either not known or were not properly recognized during the trial and sentencing.
  • This factor must be one that would have had an impact on the sentencing had it been known.

There is usually a limited time post-sentencing to file this motion.

Appeal

An appeal is a request for a higher court—a state or federal court of appeals, depending on your case—to revise the verdict from the trial. The appeals court reviews the trial evidence and the handling of the trial. It does not consider new evidence.

The court may find an error in the lower court's verdict and then either revise the ruling or throw it out entirely. It may also send it back to the lower court. If it finds no error, the appeals court will affirm the lower court's verdict.

Defendants really do have a lot of options even after sentencing. An experienced criminal defense attorney can help you decide which ones apply best to your case.