RULE 35. CORRECTION OR REDUCTION OF SENTENCE

Rule 35 was amended, effective January 1, 1979; September 1, 1983; March 1, 1986; March 1, 2006; March 1, 2019.

Rule 35 is derived from Fed.R.Crim.P. 35. One modification in language is the addition of the word "sentencing" to modify court. This clarifies that only the court which rendered judgment may correct an illegal sentence.

The rule encompasses two forms of relief: reduction of sentence, and correction of sentence illegal in form or manner of imposition or given in error. Under the rule: (1) it is presupposed that the conviction upon which the sentence has been imposed is valid; (2) the court is empowered to act on its own motion; and (3) the court is prohibited from acting during the pendency of an appeal.

A motion under the rule is essentially a plea for leniency and presupposes a valid conviction. Rule 35 motion presupposes a valid conviction only for purposes of a hearing on that motion and does not preclude an appeal by a defendant from the conviction. A motion under this rule is addressed to the discretion of the sentencing court and may be granted if the court decides that the sentence originally imposed, for any reason, was unduly severe.

Ordinarily a court is not required to hear testimony or arguments on a motion for reduction of sentence. This is discretionary with the court. If the court does decide to reduce the sentence, the defendant need not be present nor need he be allowed to make a statement in his behalf before the reduced sentence is imposed. A motion for reduction of sentence must comply with Rule 47, but in the case of pro se requests by prisoners, the court will entertain the request although contained in an informal letter from the prisoner to the sentencing judge.

The clearest instance of illegality in a sentence is where the court imposes a sentence in excess of the maximum term authorized under the statute violated. An excessive sentence is void only as to the excess and is to be corrected, not by absolute discharge of or new trial for the prisoner, but by an appropriate amendment to the invalid sentence by the court of original jurisdiction. A sentence by a court having jurisdiction of the person and the offense committing a person to an authorized penal institution but for a term in excess of what the law permits is not void as to the period of lawful imposition, but void only as to the excess beyond that which could have been lawfully imposed.

It should be noted that the period is not defined as the time in which the motion may be made, but is rather the time in which the court may act. If a court fails to act upon a motion in the allotted time, this precludes relief. The trial court is not required to state its reason for denying a motion for reduction of sentence.

Rule 35 was amended, effective January 1, 1979, to require that notice of a motion for correction or reduction of sentence be given to the parties in accordance with Rule 49, whether the court acts on its own motion or a motion filed by a party. If the court grants relief under this rule, it must give its reasons in writing.

Rule 35 was amended, effective September 1, 1983, to track amendments to the federal rule creating two subdivisions and inserting a new sentence in subdivision (b) providing that "changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this subdivision."

Subdivision (a) was amended, effective March 1, 2006, to add a new paragraph (2) giving the sentencing court discretion to correct a clear error in a sentence.

Subdivision (a) was amended, effective March 1, 2019, to clarify that a court shall correct an illegal sentence at any time.

Subdivision (b) was amended, effective March 1, 1986, to follow the 1983 amendment to the federal rule and clarify that the sentencing court may reduce a sentence within 120 days after either the sentence is imposed or probation is revoked.

Rule 35 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

SOURCES: Joint Procedure Committee Minutes of September 28, 2017, pages 21-22; January 27-28, 2005, pages 31-32; June 22, 1984, page 26; April 26, 1984, page 10; October 15-16, 1981, page 11; January 12-13, 1978, pages 9-11; October 27-28, 1977, pages 9-11; September 15-16, 1977, pages 26-27; June 2-3, 1977, pages 11-12; December 11-15, 1972, pages 20-24; September 26-27, 1968, page 18; Fed.R.Crim.P. 35.

STATUTES AFFECTED:

CONSIDERED: N.D.C.C. § 12-06-08, ch. 12-53 except section 12-53-15, which is superseded by N.D.R.Crim.P. 32; N.D.C.C. §§ 12.1-32-06(2), 29-26-03, 29-26-05, 29-26-06, 29-26-07, 29-26-09, 29-26-10, 29-26-11, 29-26-12, 29-26-13, 29-26-14, 29-26-16, 29-26-17, 29-26-18, 29-26-20, 29-26-21, 29-26-22, 29-26-22.1, 29-26-22.2, 29-26-23, 29-26-24, 40-18-13.

CROSS REFERENCE: N.D.R.Crim.P. 47 (Motions); N.D.R.Crim.P. 49 (Serving and Filing Documents).