Criminal Law

Resentencing: Fixing a Criminal Sentence

"Resentencing" is the process for "fixing" a criminal sentence. It's when there's some problem or error with the sentence or punishment imposed on a defendant's conviction that requires the court to look at things again and order a new sentence.

There are two times when a resentencing may be necessary, either after:

  • An appeal, which is when you ask a higher court to look at the sentence for errors, or
  • The defendant earns it through helping the prosecution


Criminal appeals are usually very complicated. Simply, an appeal is when the prosecution or the defendant (he's called the "appellant" on appeal) doesn't like the outcome of the case and asks another judge or a higher court to look at the case again for errors or mistakes. The defendant or the government may appeal when the:

  • Sentence breaks the law. A good example when someone thinks that the sentence is unreasonable - too long or too short based on the sentencing law. Another example may be when the sentence varies from plea bargain terms
  • Sentencing judge or court didn't properly apply the US Sentencing Guidelines (the "Guidelines"). These are special rules that federal judges use to help figure a sentence, like a math formula. Many states have adopted the federal Guidelines, and some have their own versions 
  • Guidelines don't list a sentence for the crime and the sentence is plainly unreasonable

The final reason for an appeal deals with time. The defendant may appeal if the sentence imposed is more than the maximum set by the Guidelines. The prosecution may appeal if the sentence is less than the minimum set by the Guidelines.

In most cases, the court on appeal (usually called an "appellate court") doesn't make a new decision about whether you actually committed the crime. Rather, it looks at the case to see if the judge who sentenced you made some sort of a legal mistake that makes the sentence wrong or unfair. If it finds a mistake, the appellate court will send the case back to the sentencing judge. This called a "remand." Usually the sentencing judge receives a detailed explanation of why the sentence is wrong and instructions on how to fix it.

If the appellate court doesn't find an error, it will "affirms" and the sentence stands as ordered.

Earning a Reduction

If, after sentencing, you provide substantial assistance or help in investigating or prosecuting someone else, your sentence may be reduced. For this to work, the government or prosecution files a motion with the court asking for reduction. Usually, the government has to file the motion within one year of the date that the judge verbally announced the sentence in court.

If the government files a motion, the court will hold a resentencing hearing where it will look at the evidence to determine if in fact you gave "substantial assistance." This may include many things, such as working "undercover" or as an informant, making periodic reports to the prosecutor or police, testifying as a witness at a trial, providing names and addresses of people of interest to the prosecution or police and gathering evidence like documents and photographs.

If the judge agrees that you've provided substantial assistance, she may reduce your sentence, even to one below the range listed in the applicable state or federal sentencing guidelines. For example, say that under the guidelines your sentence could have been anything between two and five years in prison, and you were sentenced to the minimum of two years. On resentencing the judge could give you a sentence of one year in prison, or maybe one year of probation.

Questions for Your Attorney

  • As part of a plea agreement, the prosecution agreed to file a motion for resentencing based upon my substantial assistance. It's been six months, but the prosecutor hasn't filed the motion yet. What can I do?
  • If I win on appeal, will I get credit for the time I spent in jail during the appeal process in addition to any reduction the judge makes at resentencing?
  • In prison, what are my rights to the library and resources needed for appealing my sentence?
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