However, there are cases in which a modification may actually be required. Some of these circumstances include:.
Criminal sentence modifications can be completed before or after sentencing has started. These modifications can often result in considerable reductions to penalties. At any point in the trial, the defendant is allowed to request a sentence modification.
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In order to do this, the attorney representing the defendant will need to file a motion, and the judge will hold a hearing on the motion. Once the motion has been filed, there is typically a two-step process: proving the existence of new factors and the determination of justification. Once the motion is under review, it is up to the defendant to prove that there are new factors in existence that would justify a criminal sentence modification. These new factors must be established by clear and convincing evidence. Thus, simply bringing up a new factor is not sufficient.
New factors are facts, or a set of facts, that:. In most jurisdictions, if the initial sentence is greater than three years, the prosecutor must agree to have the motion reviewed. The sentence may be corrected, modified, or reduced, based on the facts of the case. However, it is highly unlikely that the sentence would be dismissed entirely.
Probation Portion of the Sentence
Additionally, the judge may decide to pass alternative sentencing , if the defendant is eligible. Alternative sentencing includes restitution and fines, work release and weekend jail programs, house arrest with electronic monitoring, community service, and jail diversion and rehabilitation programs. Can a defendant be punished with a greater sentence upon presenting new facts? Yes, but only if the defendant claims that the sentence was illegal, and further investigation reveals that the legal sentence is actually more harsh.
However, if the original sentence was legal, it is not possible for it to be modified in any way that would increase the punishment. The law of double jeopardy comes into play when claims of illegal sentencing are made.
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As previously mentioned, a criminal sentence may be modified if the defendant cooperates and provides valuable information or testimony to aid in the prosecution of someone else. If a defendant provides the valuable information before being convicted, they could receive a lighter sentence or reduced charges. However, if they have already been convicted, and the case is final, they may still petition the court for a reduction within one year of the conviction.
The reduction must meet the guidelines for reductions set by the Sentencing Commission. Appealing a sentence is no easy task.
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Sentences may only be appealed if said sentence is illegal, unconstitutional, or unreasonably excessive. Once appealed, the appeals court can modify the original sentence s given to the defendant. Criminal defendants can appeal convictions the statement of guilt , but not necessarily a sentence the punishment assigned to that statement of guilt.
Requesting a modification is a complex process with several steps.
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A motion will need to be filed, and new factors will need to be discovered and proved. A knowledgeable and qualified criminal attorney will be your best bet for potentially receiving a modification of a criminal sentence. Additionally, an attorney will help you determine if you qualify for a criminal sentence modification, file the motion, help you gather and prove new factors, as well as represent you in court, if necessary.
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An effort to challenge the validity of pre-trial rulings by the trial court, rulings made by the trial court, or ineffective assistance of claims against trial counsel typically takes the form of a motion for new trial or a direct appeal to the Georgia Court of Appeals or the Georgia Supreme Court.
However, post-conviction relief in Georgia need not necessarily be confined strictly to legal challenges involving rulings by the trial court or ineffective assistance of trial counsel. Often times, post-conviction relief involves efforts to obtain earlier release from the sentence originally imposed. Typically, a post-conviction relief in Georgia involves a dynamic strategy consisting of both efforts to obtain a new trial and efforts to modify the sentence imposed. Frequently, we make an effort to leverage legal issues that may result in a new trial to obtain a modified sentence.
The effort to obtain post-conviction relief in Georgia need not be an all-or-nothing proposition. If you are seeking post-conviction relief in the form of assistance in seeking parole from the Georgia Board of Pardons and Parole, we may be able to help.
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We welcome the opportunity to speak with you. Unfortunately, Georgia does not have a statutory provision the expungement of a criminal conviction after a period of time. If you are going to obtain relief from a Georgia criminal conviction that is causing concerns with immigration officials, you will likely have to get the conviction vacated.