A proposal to allow judges to modify sentences at any time upon stipulation

Proposal to amend Florida Rule of Criminal Procedure (F.R. Crim. Pro.) 3.800(c).

Submitted by N. Adam Tebrugge, Florida Bar# 473650

Proposal: The rule should be amended with language, such as: “Upon stipulation of the state attorney and the defendant, and after a hearing, the trial court may modify or correct a sentence at any time.”

Present situation: Under rule 3.800 (c), a motion to modify sentence must be filed within 60 days of the sentence becoming final. No rule of procedure presently allows for a modification of sentence after that time has run. Occasionally, the parties to a proceeding and the judge may use F.R. Crim. Pro. 3.850 to accomplish a sought upon modification. While an “illegal sentence” may be corrected at any time (See F.R. Crim. Pro. 3.800(a)), there are occasions where a legal sentence should be corrected due to oversight or error.

History: This rule was adopted in 1968. The committee notes reflect that the rule was the “same as sections 921.24 and 921.25 Florida Statutes,” and were “similar to Federal Rule of Criminal Procedure 35.” The relevant Florida statutes were repealed in 1969 (See 1970 supplement to Florida Statutes). Now chapter 921 of the Florida Statutes contains the Criminal Punishment Code.

       When considering the 60 day limitation on filing a motion to modify, the courts have considered this to be a jurisdictional issue. See, e.g. Abreu v. State, 660 So.2d 703 (Fla. 1995); McCormick v. State, 961 So.2d 1099 (Fla. 2d DCA 2007); Schlabach v. State, 37 So.3d 230 (Fla. 2010). In response to these cases, F.R. Crim. Pro. 3.800(c) was amended in 2011. See Amendments to Rule of Criminal Procedure 3.800(c), 76 So.3d 913 (Fla. 2011).  The amendment expanded the trial court’s jurisdiction to rule on a timely filed motion to “90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion.” (emphasis added). Thus, the rule already contemplates that the court’s jurisdiction can be extended by stipulation.  

Why should the rule be amended? The sixty-day rule is overly restrictive and does not provide any exceptions. The court and the parties should not have to invent workarounds to the rules of procedure. There should be a mechanism that allows modification of a sentence when there is agreement. A safety valve should be in place that allows the flexibility to modify a sentence that all agree is unjust.

Safeguards: Safeguards are in place in the contemplated amendment.

     a). The state attorney would be the gatekeeper, as the amendment would require their stipulation to any modification. As a constitutional officer and elected official, the state attorney is uniquely positioned to be responsive to the law and to their community.

     b). Any modification or correction would require judicial approval. Judicial approval would prevent stipulated modifications that do not comply with other Florida law.

     c). The rule contemplates a properly noticed public hearing in order to ensure transparency and that there is a record of any modification.

     d). The Florida Constitution (Art. I, s. 18(b)) and Florida statutes (F.S. 960.001) require notice to any victim for a hearing of this type.

Going Forward: The enhancements subcommittee should report favorably on this proposal to the Criminal Punishment Code Task Force. The Task Force should: 1) recommend that the Florida Legislature consider and adopt the proposed amendment; 2) Recommend that the Florida Bar Criminal Procedures Rules Committee adopt the proposed amendment. These recommendations appear to be within the scope of the Task Force. The Task Force was created “for the purpose of reviewing, evaluating and making recommendations regarding sentencing . . . under the Criminal Punishment Code.” See  Laws of Florida ch. 2019-167;  s. 152(1).