R.I. Super. Ct. R. Crim. P. 35

As amended through June 7, 2024

Rule 35 - Correction, Decrease, or Increase of Sentence.

(a)Correction or reduction of sentence. The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed, or within one hundred and twenty (120) days after receipt by the court of a mandate of the Supreme Court of Rhode Island issued upon affirmance of the judgment or dismissal of the appeal, or within one hundred and twenty (120) days after receipt by the court of a mandate or order of the Supreme Court of the United States issued upon affirmance of the judgment, dismissal of the appeal, or denial of a writ of certiorari. The court shall act on the motion within a reasonable time, provided that any delay by the court in ruling on the motion shall not prejudice the movant. The court may reduce a sentence, the execution of which has been suspended, upon revocation of probation.

(b) Increase in sentence. Within twenty (20) days after the filing of a motion to reduce a sentence, the attorney general may file a motion for an increase in said sentence. The court on its own motion, after the filing of a motion to reduce a sentence, may increase said sentence. Whenever a judge increases a sentence, the reasons for so doing must be made part of the record and must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

(c)Motion for Termination of Probation. At any time after a defendant has served at least three (3) years of a term of probation in the community, the probation unit of the Department of Corrections, either at a defendant's request or administratively, may review the defendant's case history and recommend amending the defendant's sentence to terminate the defendant's probation. The probation unit's recommendation shall be based on the criteria contained in subdivision (1). In the event the probation unit recommends termination of the defendant's probation, the defendant may file in Superior Court a motion to amend the defendant's sentence to terminate the defendant's probation. This rule shall apply to all persons on probation and otherwise eligible, including persons sentenced to probation prior to the adoption of this rule.

(1) A motion seeking probation termination shall contain a signed certificate from the probation unit of the department of corrections stating that:

(i) A copy of the signed certificate has been provided to the State; and the defendant's probation is not conditioned on an active no-contact order; and

(ii) The defendant has completed all of the terms and conditions of the defendant's probation, including, but not limited to, counseling requirements, community service orders, restitution orders, and fines; and

(iii) There are no pending probation or deferred sentence revocation proceedings filed against the defendant; and

(iv) During the three (3) years preceding the issuance of the certificate by the probation unit, the court has not declared defendant a violator of the defendant's probation or deferred sentence; and

(v) The defendant is not currently on parole in this or any other jurisdiction; and

(vi) The defendant is not currently on probation, suspended sentence, or deferred sentence in any other criminal case in this or any other jurisdiction, with the exception of another criminal case where the term of probation, suspended sentence or deferred sentence was imposed on the same date as the other sentence and the sentences were ordered to run concurrently; and

(vii) The defendant is not the subject of pending charge(s) in this or any other jurisdiction; and

(viii) The probation unit has made reasonable efforts to contact victims through its Office of Victims Services and/or the victim's last known address; and

(ix) After review of the defendant's case history and the criteria in subdivisions (1)(i) to (ix), the probation unit recommends that the defendant's probation be terminated.

(2) The motion shall be filed by the defendant at least ten (10) days before the time fixed for the hearing, with a copy provided to the State who shall be afforded an opportunity to object to the motion. The court may grant the motion to discharge the defendant from probation, after hearing, if in the discretion of the judicial officer, the judicial officer finds that the defendant has demonstrated that the defendant no longer requires supervision.

(3) The defendant shall appear in open court, with or without an attorney and may be questioned, under oath by the attorney for the State or the judicial officer.

(4) In the event that the motion is granted, an order shall issue and thereafter a new judgment reflecting the change(s) in the sentence shall be entered by the court.

R.I. Super. Ct. R. Crim. P. 35

As amended by the court on 7/1/2002; further amended effective 6/21/2016; last amended by Order dated June 22, 2017, effective 9/5/2017.

Committee Notes for 2016 Amendment. The 2016 amendment, by adding subsection (c), provides a defendant the opportunity to seek early termination of his or her probation by motion filed in the Superior Court with an accompanying certificate from the probation unit of the department of corrections recommending that the defendant's probation be terminated. It is the consensus of the committee that the amendment should apply to all persons on probation and otherwise eligible, including persons sentenced to probation prior to the adoption of 35(c).

2002 Committee Notes

The proposed amendments to the language of the rule are designed to accurately reflect current practice under the rule as it has been interpreted by the Supreme Court. State v. Byrnes, 456 A.2d 742 (R.I. 1983); State v. Letourneau, 446 A.2d 746 (R.I. 1982).

The additional language regarding an increase in sentence is intended to make the language of the rule consistent with State v. Brown, 755 A.2d 124, 125-26 (R.I. 2000)

1972 Notes

This rule is basically the same as its federal counterpart. Under the rule the Superior Court is empowered to correct an illegal sentence at any time upon its own motion or upon the motion of the State or a person previously sentenced by the court. Although there presently is no statutory provision authorizing the Superior Court to take such action, the Rhode Island Supreme Court has held that the trial court can correct an illegal sentence after a judgment has become final on either the motion of the State (Frazier v. Langlois, 103 R.I. 607, 240 A.2d 152 (1968)) or on habeas corpus proceedings (In the Matter of Hammel, 9 R.I. 248 (1869)). For purposes of the rule, an "illegal sentence" is one which has been imposed after a valid conviction but is not authorized under law. It includes, e.g., a sentence in excess of that provided by statute, imposition of an unauthorized form of punishment, a judgment that does not conform to the oral sentence. See 2 Wright, Federal Practice and Procedure, pp. 552-53(1969).

In addition, the rule authorizes the court to correct a sentence illegally imposed as well as to reduce any sentence. This authority, however, must be exercised within 120 days after the judgment has become final. For these purposes, a sentence illegally imposed is one that does not conform to the procedures required by these rules for imposition of sentence--for example, failure to accord a defendant his right of allocution under Rule 32. The provision permitting reduction of a valid sentence is intended to provide the court with an opportunity during a limited period after sentencing to exercise leniency in the event the court, for some reason, determines that the sentence imposed was unduly severe or a shorter sentence would be desirable.

The authority given to the court to reduce a sentence upon revocation of probation, will be an addition to the powers expressly granted by G.L.1956 (1969 Reenactment), § 12-19-9 (Supp.1970).