Can a judge use your appeal to fix a mistake that he made in court

Asked about 2 years ago - Oakland, MD

my son pleadid guilty and in the plea he would not get no more than ten yrs at sentencing the judge gave him 25yrs knowing that this was a mistake we filed are appeals which we were going to do if the jugde gave him the ten yrs, it was brought to the judges attention and he revised it a few weeks later but we feel that we should still have are appeal of modification to use at a later date because it was the judges fualt for the wrong sentence and by being bound by the court due to. the plea he had to change sentence. I'm not sure what it is called but iv'e been told that you can ask for a modification but it can be held to hear it after you have sevred some of your time

Attorney answers (4)

  1. Mark William Oakley

    Contributor Level 18

    3

    Lawyers agree

    Answered . If the sole basis of the appeal was that the judge gave the incorrect sentence, and the judge has now corrected the sentence by revising the sentence to the correct term agreed to in the plea deal (a revision of a criminal sentence normally must be made in court with the defendant present), then your appeal is now moot. It will likely be dismissed by the appeals court. A judge retains revisory power to correct a clerical mistake in a judgment (if that was what the mistake was) at any time.

  2. Jason Alan Ostendorf

    Pro

    Contributor Level 8

    3

    Lawyers agree

    Answered . The answer to your question is answered by Maryland Rule 4-345. Since your case was in the circuit court, the judge had revosiry power over the sentence, and thus did nothing wrong. Unfortunately, your appeal will likely be dismissed, unless you had some basis for the appeal other than that the sentence exceeded the plea agreement. Having said that, it may be worth consultation with some criminal lawyers just to see if there is any other appealable issue.

  3. Warren Duryea Price

    Pro

    Contributor Level 6

    2

    Lawyers agree

    Answered . If what you are referring to is the motion to modify, then it must be filed within 90 days of the Judge's original ruling in the case. That motion can be held sub curiae by the court until your son has sufficiently complied with his sentence/probation and the Judge feels he wishes to modify the sentence. You should immediately seek counsel to help you file the motion, so that it will have been filed if the Judge wants to modify your son's sentence down the road.

  4. William Lawrence Welch III

    Contributor Level 16

    1

    Lawyer agrees

    Answered . The court may fix its own mistake. Your son has 90 days from sentencing to ask for modification by the original judge.

    The court's mistake does not generate an opportunity to try to renegotiatie the plea bargain.

    Information in the reply is provided as a public service. It is neither a comprehensive statement of the law nor... more

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