The ever-changing sentencing laws have allowed for more opportunities for a resentencing. Likewise, claims of ineffective assistance of counsel
have allowed for successful resentencing during appeals
and collateral proceedings, such as 440 motions.
All sentencing must be performed by the judge, including sentences for post-release supervision
, and any sentences imposed administratively by the Department of Corrections may be appealable or fought during a collateral proceeding. If a person has unexpected incarceration or post-release supervision attached to a sentence, they should pursue a 440 motion or other methods for fixing this illegally imposed sentence.
Many resentencing motions happen after a defendant pleads guilty pursuant to a plea bargain. In many cases, the sentence turns out to be longer than expected or to include terms not agreed upon by the defendant or the defense attorney. Sometimes, defendants who suffer collateral consequences after pleading guilty may argue for a resentencing because the court or the defense attorney failed to warn the client about these consequences, which may include sex offender registration
and immigration consequences. In other circumstances, the court or the defense attorney may have failed to warn the defendant about the potential minimum or maximum sentences.
To fight for resentencing, a defendant should contact a criminal attorney with sentencing and appellate experience. As a general rule, a defendant should obtain from his trial attorney a written document, such as a letter or legal memorandum, discussing the potential sentencing exposure that the defendant faces from pending charges or from a potential plea bargain. Unfortunately, many defense attorneys provide incorrect information to their clients', but the clients have no way of proving what the defense attorney promised them. However, if the defendant obtained a written calculation of the potential sentence, and the attorney provides incorrect information about the mandatory minimum or maximum sentences, the defendant may move for a resentencing through an appeal or a 440 motion.
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