The trial judge still has the authority to change any sentence that must be carried out in a jail or workhouse, according to T.C.A. 40-35-212. The statute concerning Rule 35, however, prevents the court from altering a sentence given to the department of prisons after the trial court’s final decision has been rendered. A sentence modification motion must be submitted within 120 days of the trial court’s imposition of the sentence. It is not possible to toll or prolong this time frame. Contrary to federal law, which also permits a revision after appeal, the 120 days begin to run as soon as the trial judge sentences the defendant, not when the appellate court issues its order. The defendant is not entitled to bail pending an appeal of a negative action under this rule if the judge denies relief and the defendant is already detained. The goal of denying bail is to avoid motions to modify and appeals that are filed with the express intent of keeping the defendant on bond.
The Legal Framework
(a) Motion’s timing: The trial court may decrease the sentence upon motion filed within 120 days of the date the sentence is issued or probation is canceled. The time restriction shall not be extended in any way. No other actions slow down the passage of time.
(b) Sentence modification restrictions: Only sentences the court could have initially imposed may be reduced by the court.
(c) No Need for Hearing: A motion for a sentence reduction under this rule may be rejected by the trial court without a hearing.
(d) Appeal: However, unless currently under bond, the defendant is not eligible for release on bond and may only appeal the denial of a motion for sentence reduction. The state may file an appeal as otherwise allowed by law if the court adjusts the sentence.
- Sentence correction.
(1) An unlawful sentence: The sentencing court must immediately remedy any criminal sentences and may do so within the period allowed by Rule 35(b) for sentence reduction (1).
(2) Correct Error: The sentencing court may alter a sentence that was rendered due to a precise mathematical, technical or other error after giving the defendant any notice it deems appropriate.
What is Rule 35?
The meaning of Rule 35 is explained below:
Rule 35: Modifying a Sentence or Collateral:
(a) Modifying the Sentence: The court may overturn an unconstitutional sentence at any time and may do so before the deadline for the sentence reduction outlined in this clause.
(b) Shortening a sentence:
(1) When moving- A motion to reduce a sentence may be submitted no later than 120 days following the imposition of the sentence or the termination of probation or no later than 120 days after the court receives a mandate issued upon affirming the judgment or dismissing the appeal, or no later than 120 days after the entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation, or no later than 120 days after the entry of any mandate issued upon affirm a motion must be decided by the court promptly.
(2) The Court’s Sua Sponte- The court may reduce a sentence without the need for a motion within 120 days of the sentence being imposed or probation being terminated or within 120 days of the court receiving a mandate issued upon affirmation of the judgment or dismissal of the appeal or within 120 days of the entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of the lower court.
Effective dates of the Amendment and what they say
Modification by Public Law:
- 1986- Subd. (b). “According to the guidelines and policy statements established by the Sentencing Commission under section 994 of chapter 28, United States Code,” was substituted by Pub. L. 99-570. For “to the extent that such assistance is a factor in applicable guidelines or policy statements issued by the Sentencing Commission under 28 U.S.C. 994(a), the court may reduce the sentence under this subdivision to a level below that prescribed by statute as a minimum term.”
- Pub. L. 98-473 made broad changes to Rule 35 in 1984- The rule’s previous version was as follows:
Rule 35. Sentence Modification or Reduction “(a) Sentence correction. The court may overturn an unconstitutional sentence at any time and may do so before the deadline for the sentence reduction outlined in this clause.”
“(b) Sentence Reduction. Within 120 days after the sentence is imposed or probation is revoked, or within 120 days after the court receives a mandate issued upon affirming the judgment or dismissing the appeal, or within 120 days after the entry of any Supreme Court order or decision that prevents reconsideration of, or has the effect of upholding, a conviction or probation revocation decision, a motion to reduce a sentence may be made, or the court may reduce a sentence without motion. Within a reasonable amount of time, the court must decide the motion. A sentence that is converted from an imprisoning term to a grant of probation qualifies as a sentence reduction under this section.”
Implementation of the 1986 Amendment
Rule 35(b) of the Federal Rules of Criminal Procedure, as amended by section 215(b) of the Comprehensive Crime Control Act of 1984 [section 215(b) of Pub. L. 98-473, effective Nov. 1, 1987], shall go into effect on the date specified in section 1009(b) of Public Law 99-570, which stated: “The amendment made by this section [amending this rule] shall go into effect on the date specified in Section 215(b) of Pub.
Dates when the 1985 Amendments Became Effective and Ended
Section 2 of the Supreme Court’s order dated April 29, 1985, states that the Federal Rules of Criminal Procedure’s aforementioned changes [amending Rules 6, 11, 12.1, 12.2, 35, 45, 49, and 57] shall take effect on August 1, 1985, and shall govern all proceedings in criminal cases thereafter instituted and, to the extent just and practical, all proceedings in criminal cases then pending. Until November 1, 1986, when Section 215(b) of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, passed on October 12, 1984, 98 Stat. 2015, takes effect; Rule 35(b) must remain in effect.
Beginning of the 1984 Amendment
See section 235(a)(1) of Pub. L. 98-473, which is listed as an Effective Date note under section 3551 of this chapter, for an amendment made effective as of November 1, 1987, and solely affecting offenses committed after the amendment took effect.
The Use of Federal Rule of Criminal Procedure
The following conclusions are suggested by an analysis of the 10,811 cases for which Rule 35(b) federal reductions were approved over the previous six years:
- Although Rule 35(b) federal sentence reductions are infrequently used, they are frequently employed in a small number of jurisdictions. Since these districts differ significantly from one another in terms of overall caseload, offense mix, and demographic makeup, there is no obvious data-based explanation for these variations.
- Most offenders who were sentenced within the guideline range later received a Rule 35(b) reduction. This indicates that when dealing with this particular set of criminals, courts rarely deviate or change for other reasons.
- The majority of defendants who were granted a Rule 35(b) reduction were found guilty of a drug trafficking charge with a mandatory minimum sentence.
- Sentence reductions under Rule 35(b) typically offer less benefit than departures under 5K1.1 for substantial aid. This basic remark is accurate whether comparing the Rule 35(b) sentencing reduction to the 5K1.1 substantial assistance departure based on the duration of the final sentence or the magnitude of the decrease from the first sentence. However, given the relatively high proportion of Rule 35(b) offenders convicted of drug and gun offenses as well as the proportion of those facing mandatory minimum sentences, these criminals might not receive as much of a discount because they are more serious offenders.
- Even though Rule 35(b) sentencing reductions are ordinarily less favorable to offenders than are 5K1.1 substantial assistance departures, offenders who receive both a 5K1.1 departure or a Rule 35(b) sentencing reduction have the greatest overall decrease in their sentences.
- They receive less of a benefit for their total considerable assistance than offenders sentenced in jurisdictions that rely solely on Rule 35(b) sentencing reductions or a combination of Rule 35(b) reductions and 5K1.1 departures.
Offenders can earn credit for their “substantial help” in at least two different ways: the 5K1.1 substantial assistance departure and the post-sentencing Rule 35(b) reduction. Despite making up to 18% of all substantial aid sentencing reductions for criminals sentenced in a given year, Rule 35(b) sentencing reductions have gotten comparatively little research, at least in comparison to 5K1.1 departures.