When the prosecution and the defense cannot agree upon a sentence, a person charged with a crime may enter a plea to the court with no dispositional understanding-an open plea-in the hope that the judge will provide a better sentence than the State has offered. An open plea means that the judge can sentence someone to the statutory maximum. For example, if your loved one pled guilty or no contest to a third-degree felony, the court can sentence them up to five years in prison. After an open plea is entered, the court will conduct a sentencing hearing where both sides will present evidence, and the defense attorney will advocate for the lowest possible sentence. Occasionally, the sentencing hearing does not end up favorably for the person charged with a crime and he or she receives a very harsh sentence. What can an attorney do to help?
Rule 3.800(c) of the Florida Rules of Criminal Procedure allows an attorney to file a motion for modification, reduction, or reconsideration of sentence. The motion must be filed within sixty days of the sentence or a mandate from the appellate court after a direct appeal has concluded. If the motion is not filed within sixty days, a court does not have jurisdiction to hear the motion. Once a motion is filed, the trial court has ninety days to rule on the motion or other time as agreed upon by the parties or the court. However, it sometimes is very difficult with attorney and court calendars to have a hearing on the motion within the ninety day time frame and the Florida Supreme Court has recognized that generally not holding a hearing within ninety days is not fatal to the motion.
If the court grants a hearing on a 3.800(c) motion, an attorney may present additional evidence in the hope that the judge will lower the sentence. This means that a defense attorney may present witnesses and argument in support of a lower sentence sometimes called a sentencing guidelines departure, even if the trial court has previously denied a request for a departure on the same grounds. There is a critical warning that everyone should know with a 3.800(c) motion-it does not toll the thirty day time to appeal. This means that an attorney still must file a notice of appeal even if a 3.800(c) is pending. Although a motion for modification, reduction, or reconsideration of sentence is not an appealable order, an attorney can still obtain relief from an appellate court if the judge dismisses the motion as untimely or determines that the court does not have discretion to hear the motion.
If you or a loved one needs help with an excessive sentence after an open plea, please contact our office for help. Please see more about appealing sentences here.