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Criminal Resentencing: How Does It Work?

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By Brett Snider, Esq. on September 10, 2014 2:10 PM

Criminal convicts who receive an inappropriate sentence may have the chance to have it reduced, or even possibly increased, if they are resentenced.

A federal judge in Miami resentenced terrorism convict Jose Padilla on Tuesday, increasing his original 17-year prison sentence to 21 years. Reuters reports that Padilla had been an al-Qaeda recruit, and an appeals court had deemed his original sentence "too lenient."

How do convicted criminals like Padilla get resentenced?

Appeals Find Defect in Sentence

Often when a convict is up for resentencing, it is because an appellate court has found something wrong with the way the trial court initially sentenced the convict. Some common defects in sentencing include:

  • Illegal sentence. Many jurisdictions have mandatory minimums and maximum penalties for particular crimes. As you may recall, a Montana judge had his 30-day rape sentence for an ex-teacher reversed for violating the state's laws on mandatory sentencing.
  • Sentence is cruel and/or unusual. Criminals have a constitutional right to a punishment which is neither unduly cruel nor unusual. For example, allowing witness statements to recommend the death penalty in considering a sentence has been deemed grounds for resentencing.
  • Miscalculation. Often the error isn't in the interpretation of the law but in the actual calculation of the prison term. Drug cases often involve intricate calculations of time served in relation to the quantity and type of drugs found on a defendant -- and those calculations can be wrong.

For these reasons or any others that an appellate court believes is reversible error, a convict may be sent back to the sentencing court for resentencing.

Cooperation With Prosecutors

In exchange for cooperating with the government's investigation efforts, prosecutors may offer convicts a way to have their sentences reduced. If your participation ends in a conviction or prosecutors assert you provided "substantial assistance," then you may be entitled to a resentencing hearing.

At the Resentencing Hearing

Whether granted by appeal or cooperation, resentencing involves a judge considering many of the same factors when a person was originally sentenced, plus whatever has happened since then. Convicts who have been model inmates and who have substantially cooperated with prosecutors may be given a more lenient sentence. Judges must also abide with whatever instruction an appellate court may have given in ordering the defendant to be resentenced.

An experienced criminal defense attorney can (and should) be present during your resentencing hearing, and his or her advice should prove invaluable.

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