Interviewer: What about sentence modification or commutations or pardons or things like that.
Randy Berman: I previously discussed under the topic of Losing an Appeal/Post-Conviction Motions, Rule 3.800 Correction, reduction and Modification of Sentences. Look at that for sentence modification. Regarding commutations, that’s dealing with making a request to the governor or the president but those aren’t legal proceedings. Those are administrative executive branch situations where you contact the governor’s office if it’s a state conviction and ask for clemency. It’s totally discretionary. There’s no forum for a hearing. It’s generally based on a written request supported by letters from families and friends supporting the request explaining why.
It’s not in a legal forum with a right to an attorney and it’s not something that is granted often. People do ask me about this on occasion. In Florida the law is found in Chapter 940 entitled Executive Clemency. It sets out the rules to be followed to request commutations or pardons. There is an application form provided by the Florida Parole Commission that needs to be filled out and submitted along with other documentation.
Interviewer: That’s a rarity?
Randy Berman: It’s a real rarity. Huge the most notable occurrence was in Illinois about 10 years ago when it was brought to the attention of then-Governor Ryan that numerous individuals that were put to death were later exonerated by DNA. He commuted every death sentence pending at that time to a life sentence because so many innocent people were convicted and sentenced to death. They ran a great story on 60 Minutes about it.
Interviewer: Besides commutation and pardons, what about sentence modifications?
Randy Berman: Modifications of sentence are limited because there is a time limit to file a motion to modify. They have to be done fairly quickly, whereas a 3.850 can be filed two years after your final appeal is done and 3.800 can be filed at any time generally for illegal sentences. Motions to modify a legally imposed sentence have a 60-day limit on them. Unless somebody is on top of it right away and is engaging an attorney for that purpose, you don’t see too many of those, but it’s something that’s out there. The thing to remember is that when someone is sentenced after they’re convicted it is rare for there to be any significant news to present within the next 60 days that’s going to have any impact on the judge that just handed that sentence down. Generally if some significant fact was not known at the time of sentencing or something significant occurred after sentencing that may affect the judge’s opinion of the sentence, it is worth trying a 3.800 Motion to Modify or Reduce the Sentence.