Motion to Reconsider Sentence - West Virginia

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Original Sentence Summary
4. Grounds for Reconsideration
5. Filing Deadline Compliance
6. Mitigating Factors
7. Rehabilitation Evidence
8. Proposed Sentence Modification
9. Legal Authority
10. Proposed Order
11. Certificate of Service

Caption

IN THE CIRCUIT COURT OF [________________________________] COUNTY, WEST VIRGINIA

Introduction

COMES NOW the Defendant, [________________________________], by and through [his/her] attorney, [________________________________], and respectfully moves this Honorable Court pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure to reconsider and reduce the sentence imposed on [__/__/____] in the above-captioned matter. In support thereof, Defendant states as follows:

Original Sentence Summary

1. On [__/__/____], Defendant was convicted of [________________________________] in violation of W.Va. Code § [________________________________].

2. On [__/__/____], this Court imposed the following sentence:

• ☐ Incarceration with WV DOC: [________________________________]
• ☐ Regional jail: [________________________________]
• ☐ Suspended sentence: [________________________________]
• ☐ Probation: [________________________________]
• ☐ Home confinement: [________________________________]
• ☐ Fine: $[________________________________]
• ☐ Restitution: $[________________________________]
• ☐ Community Service: [________________________________] hours
• ☐ Other Conditions: [________________________________]

3. The conviction arose from the following circumstances: [________________________________]

Grounds for Reconsideration

Defendant respectfully requests reconsideration of the imposed sentence for the following reasons:

☐ A. The sentence imposed was unduly severe. The sentence does not reflect the nature and circumstances of the offense or the character of the Defendant. [________________________________]

☐ B. Changed circumstances since sentencing. Since the imposition of sentence, the following material changes have occurred: [________________________________]

☐ C. New information not available at sentencing. The following relevant information was not available to the Court at sentencing: [________________________________]

☐ D. Rehabilitation progress. Defendant has demonstrated significant rehabilitation since sentencing.

☐ E. Sentencing disparity. The sentence is disproportionate to sentences imposed on similarly situated defendants. [________________________________]

☐ F. Probation is appropriate. The character of the offender and circumstances of the case indicate the Defendant is not likely to commit another crime and the public good does not require imprisonment. [________________________________]

☐ G. Other grounds. [________________________________]

Filing Deadline Compliance

This motion is timely filed pursuant to W.Va. R. Crim. P. Rule 35(b):

☐ The sentence was imposed on [__/__/____], and this motion is filed on [__/__/____], which is within 120 days.

☐ Probation was revoked on [__/__/____], and this motion is filed within 120 days.

☐ The Supreme Court of Appeals of West Virginia issued its mandate affirming the judgment or dismissing the appeal on [__/__/____], and this motion is filed within 120 days of receipt.

☐ The Supreme Court of the United States denied review or upheld the conviction on [__/__/____], and this motion is filed within 120 days.

Mitigating Factors

The following mitigating factors support a reduced sentence:

☐ Defendant has no prior criminal history or minimal criminal record.

☐ Defendant played a minor role in the offense.

☐ The offense resulted in no physical harm to any person.

☐ Defendant has accepted responsibility and demonstrated remorse.

☐ Defendant's age at the time of offense: [____] years.

☐ Defendant has significant family responsibilities: [________________________________]

☐ Defendant suffers from mental health conditions: [________________________________]

☐ Defendant suffers from substance abuse issues and has sought treatment: [________________________________]

☐ Defendant's employment history and community ties: [________________________________]

☐ Defendant's military service record: [________________________________]

☐ Other mitigating factors: [________________________________]

Rehabilitation Evidence

Since the imposition of sentence, Defendant has undertaken the following rehabilitation efforts:

☐ Completed or enrolled in substance abuse treatment: [________________________________]

☐ Completed or enrolled in mental health treatment: [________________________________]

☐ Obtained or maintained employment: [________________________________]

☐ Completed educational programs or GED: [________________________________]

☐ Completed vocational training: [________________________________]

☐ Maintained compliance with all conditions of supervision.

☐ Completed WV DOC or regional jail programming: [________________________________]

☐ Made restitution payments totaling: $[________________________________]

☐ Other rehabilitation efforts: [________________________________]

Supporting documentation is attached as Exhibit(s) [____].

Proposed Sentence Modification

Defendant respectfully requests that this Court modify the original sentence as follows:

☐ Reduce the term of incarceration from [________________________________] to [________________________________].

☐ If Rule 35(b), W. Va. Code § 62-12-3 eligibility, and the statute's timing
limits permit, change incarceration to probation for [________________________________].

☐ Place Defendant on home confinement for [________________________________].

☐ Modify probation conditions as follows: [________________________________]

☐ Reduce the fine from $[________________________________] to $[________________________________].

☐ Modify restitution requirements: [________________________________]

☐ Other requested modification: [________________________________]

Legal Authority

This motion is supported by the following legal authority:

1. W. Va. R. Crim. P. 35(b) authorizes a reduction motion, or action by
   the court without a motion, within 120 days after sentence or probation
   revocation and within the rule's listed appellate-disposition periods. The
   court must determine the motion within a reasonable time, and changing
   incarceration to probation is a permissible reduction under the rule.

2. W.Va. R. Crim. P. Rule 35(a) permits correction of an illegal sentence at any time.

3. W. Va. Code § 62-12-3 applies only to a person eligible under the
   preceding section and permits suspension and probation on the stated findings.
   Except as provided by the following section, it also states that the court has
   no authority to suspend execution after the person has been imprisoned for
   sixty days under the sentence.

4. The court shall determine the Rule 35 motion within a reasonable time.
   State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996), explains that the
   reasonable-period inquiry is case-specific.

5. West Virginia courts retain inherent authority to correct sentences that are illegal, void, or imposed in an unauthorized manner.

Proposed Order

IN THE CIRCUIT COURT OF [________________________________] COUNTY, WEST VIRGINIA

Having considered Defendant's Motion to Reconsider Sentence, any response by the State, and the record in this matter:

IT IS HEREBY ORDERED that the Motion to Reconsider Sentence is:

☐ GRANTED. The sentence imposed on [__/__/____] is modified as follows: [________________________________]

☐ DENIED. The original sentence shall remain in full force and effect.

☐ SET FOR HEARING on [__/__/____] at [____] a.m./p.m.

DATED this [____] day of [________________________________], 20[____].

_____________________________________________
Circuit Court Judge

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Motion to Reconsider Sentence was served upon:

Prosecuting Attorney for [________________________________] County
[________________________________]
[________________________________]
[________________________________]

☐ By personal delivery
☐ By U.S. Mail, postage prepaid
☐ By electronic filing/service

_____________________________________________
[________________________________]
Attorney for Defendant
WVSB No.: [________________________________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

West Virginia Practice Notes

• 120-Day Deadline: The motion must be filed within 120 days of sentencing, probation revocation, or receipt of an appellate mandate from the Supreme Court of Appeals.
• Court's Own Motion: The court may reduce a sentence without motion from the defendant within the 120-day period.
• Probation Conversion: Rule 35(b) identifies incarceration-to-probation as a permissible reduction, but § 62-12-3 eligibility and timing limits still require case-specific review.
• Illegal Sentence: An illegal sentence may be corrected at any time under Rule 35(a), without regard to the 120-day limitation.
• Probation Standard: Section 62-12-3 requires eligibility under the preceding section, the statutory findings, and compliance with its general sixty-day limit on suspending execution after imprisonment, subject to the following section.
• Home Confinement: West Virginia authorizes home confinement as an alternative to incarceration. See W.Va. Code § 62-11B-1 et seq.
• Appeal: Denial of a Rule 35 motion may be appealed to the Supreme Court of Appeals of West Virginia.

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice. All motions should be reviewed by a licensed West Virginia attorney before filing.