How to Petition the Court for a Re-Sentencing Hearing
Even if you've been convicted of a crime by trial or guilty plea, there may be a number of reasons to ask a higher appellate court to order a re-sentencing. For example, the judge not allowing you to make a statement before the sentence was announced would be grounds for re-sentencing. According to LawFirms.com, an appellate court either determines whether a conviction should be overturned because of procedural errors, or whether the previous court did not adhere to the laws during sentencing. In the latter situation, the case is sent back to the previous court for re-sentencing.
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Instructions
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Request written and/or audio transcripts of the initial sentencing from the court clerk's office. The judge should have defined the crime, explained whether the defendant was convicted via a trial or plea, and on what charges. If a guilty plea was previously entered, the sentence should match what was previously agreed on by the prosecutor and defense attorney.
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Identify any discrepancies by checking the transcript against legal guidelines. There are state guidelines mandating how much time a court has to sentence the defendant after they are convicted. There are also state penal law guidelines that provide a sentencing range for certain guidelines. The penalty for burglary, for example, may be two to five years in prison. If you were sentenced to six years, that would be grounds for a re-sentencing. According to Lawyers.com, it's also important to make sure that the defendant is credited for the amount of time they spent in jail as they awaited trial proceedings and the sentencing.
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File the motion for re-sentencing with an appellate court. The local court clerk can provide contact information for the district appellate court, which is a higher court than the county court and serves a larger area. There may be a limited time frame for filing that motion after sentencing took place. It is customary for public defenders to guide their clients through the first steps of the appeal process after a sentencing. A privately retained attorney should be expected to do the same, and jails and prisons are expected to have the basic forms and resources available for inmates to initiate the appeals process.
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Tips & Warnings
Hire a criminal defense lawyer to help in this process.
If waving the right to appeal was part of the plea agreement, then the defendant can still seek a "writ," which, according to LawFirms.com, is a right defendants have to seek relief from a higher authority or court.
An appellate court judge would be expected to review the motion and decide if a re-sentencing should take place. If so, the re-sentencing would take place in the court where the defendant was originally sentenced, according to LawFirms.com.
References
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