Motion to Reconsider Sentence - West Virginia

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

Case No.: [CASE NUMBER]

DEFENDANT'S MOTION TO RECONSIDER SENTENCE

Defendant, by counsel, moves for the Rule 35 relief selected below from the sentence entered on [__/__/____]. Defendant requests a hearing if material facts are disputed. This motion concerns [COUNT AND OFFENSE]; the judgment and supporting records are attached as [EXHIBITS].

1. Sentence and procedural record

Conviction and sentence imposed: [OFFENSE, DATE, TERM, ANY PROBATION, AND JUDGMENT REFERENCE]

Probation revocation, if any: [DATE AND ORDER / NONE]

Appellate disposition, if any: [COURT, TYPE OF MANDATE OR ORDER, ENTRY DATE, AND EXHIBIT / NONE]

Time served under sentence: [DATES AND TOTAL DAYS, IF PROBATION CONVERSION REQUESTED]

Prior Rule 35 motions and rulings: [DATES / NONE]

2. Select one Rule 35 ground and show the filing time

☐ Reduction under Rule 35(b). The triggering event is ☐ sentence imposed on [__/__/____] ☐ probation revoked on [__/__/____] ☐ entry of a West Virginia Supreme Court of Appeals mandate on [__/__/____] affirming a conviction or probation revocation judgment ☐ entry of that court's order on [__/__/____] dismissing or rejecting a petition for appeal of such a judgment. This motion is filed on [__/__/____], within 120 days of the selected event. The relevant docket entry or order is Exhibit [____]. Rule 35(b) directs the court to decide the motion within a reasonable time.

☐ Correction under Rule 35(a). The sentence is illegal for this specific reason: [STATUTE OR RULE, SENTENCE TERMS, AND RECORD FACTS]. An illegal sentence may be corrected at any time. If the claim instead concerns a sentence imposed in an illegal manner, identify the Rule 35(b) 120-day event and deadline above, because Rule 35(a) applies that reduction period to such a claim: [EVENT AND DATES].

If a timely Rule 35(b) motion has remained pending, identify the original filing and docket history: [FACTS / NOT APPLICABLE]. State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996), holds that failure to remind the court of a timely pending motion does not itself abandon it.

3. Grounds and evidence for requested relief

The original sentence is [SUMMARY]. Defendant requests [EXACT NEW TERM OR CORRECTION] because [FACTS, RECORD CITATIONS, AND WHY THE REQUESTED RELIEF FITS THE SELECTED RULE]. Supporting material includes:

If Defendant seeks incarceration-to-probation conversion, Rule 35(b) permits that type of reduction. Defendant requests it only if eligibility under the section preceding W. Va. Code § 62-12-3 is established, the court can make § 62-12-3's character and public-good findings, and its general limit on suspending execution after 60 days of imprisonment does not bar the order or an applicable exception is shown. The eligibility provision, days served, statutory exception if invoked, and supporting facts are [SPECIFIC AUTHORITY, DATES, AND EVIDENCE / NOT APPLICABLE].

4. Requested order

Defendant requests that the Court ☐ reduce the sentence to [EXACT TERM AND EFFECTIVE DATE] under Rule 35(b) ☐ correct the illegal sentence to [EXACT LAWFUL TERM] under Rule 35(a) ☐ if legally eligible and timely, change incarceration to probation on [SPECIFIC TERMS] ☐ set a hearing and reserve the merits pending [SPECIFIC EVIDENCE]. Defendant requests a written ruling stating the selected ground and disposition.

Respectfully submitted,

Signature: ______________________________

Counsel / WV Bar No.: [NAME / NUMBER]

Address, phone, email: [CONTACT]

Date: [__/__/____]

Certificate of service

I certify that on [__/__/____] I served this motion and exhibits on [PROSECUTOR / COUNSEL] by [METHOD AUTHORIZED BY RULE OR COURT ORDER] at [SERVICE ADDRESS]. W. Va. R. Crim. P. 49 governs service and filing.

Signature: ______________________________

Proposed order

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

State of West Virginia v. [DEFENDANT], Case No. [NUMBER]

The Court considered Defendant's motion, the response, [RECORD / EXHIBITS], and [HEARING DATE / NO HEARING]. The Court finds that the Rule 35 ground selected is [GROUND], the relevant filing event occurred on [DATE OR NOT APPLICABLE], and the motion was [TIMELY / UNTIMELY / TIMING NOT REQUIRED FOR ILLEGAL SENTENCE]. The Court further finds [FACTS SUPPORTING DISPOSITION]. If probation is ordered, eligibility and § 62-12-3 findings, including the imprisonment timing issue, are [SPECIFIC FINDINGS].

The motion is ☐ GRANTED ☐ DENIED ☐ SET FOR HEARING on [DATE]. If granted, the sentence entered on [__/__/____] is changed only as follows: [COMPLETE REVISED SENTENCE AND EFFECTIVE DATE]. Other terms: [UNCHANGED TERMS OR SPECIFIC MODIFICATIONS].

Entered: [__/__/____]

Circuit Judge: ______________________________

Sources and References

• West Virginia Judiciary, Rule of Criminal Procedure 35 and 49.
• W. Va. Code § 62-12-3.
• West Virginia Judiciary, State v. Head.