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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 33928
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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I was sentenced to four years in prison for a drug charge (long

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I was sentenced to four years in prison for a drug charge (long story) but when I went to court to turn myself in on Thursday, they told me they had made a mistake and they should have sentenced me to six years, not four. I have a hard time believing they can do that. What can I do?
Was the judgment actually signed saying 4 years? State court or federal court?

Did they pronounce the sentence orally in court?
Customer: replied 5 years ago.

I believe it was signed saying 4 years. It was state court. And yes they did pronounce the sentence orally in court.

I have never heard of this occurring before and ran a quick search on the case law and didn't see anything but based on the concepts of criminal law I don't think they can change it now. A judge retains jurisdiction over a case for a certain amount of time, usually 30 days, but it seems to me that double jeopardy would apply and prevent the judge from issuing a different sentence than what was originally pronounced and signed.

How long ago was the sentence pronounced and signed?
Also, what reason are the giving you for wanting to change it?
Customer: replied 5 years ago.

I believe it was signed around July 19th or 26th. He gave me two months to get my house packed and my affairs in order. The sentencing formula for my conviction is 3,4,5 with 3 years being the low end and 5 the upper end. I have a violent felony conviction related to meth from 20 years ago that made the sentence double so if he had sentenced me according to the correct formula I should have recieved six years. I don't know where he got the four years from but that's what he said.

Do you know if the judge made a specific finding in the judgment that you had a prior?
Customer: replied 5 years ago.

I'm not sure what you mean but I can tell you this. When I was charged twenty years ago, it was two separate strikes and when they sentenced only one stripe was used because they were in the commision of the same act. My current public defender filed a Romero motion so that the prior strikes were not taken into account in sentencing. The judge struck one of the priors but used the other in sentencing because of "continuing problems related to addiction" Does that answer your question?


A little.

My answer is, of course, just based on the facts you give and without looking at the documents and then doing an intense case law study.

I think they can't change the sentencing now for several reasons (and these are just the ones off the top of my head, your lawyer will probably have several more):

1) It's double jeopardy. Once they enter a judgment they can't just go back and make substantive changes;

2) It's too late for the judge to do it. They only retain jurisdiction to change orders for a limited amount of time and this is clearly past that time; and

3) They also can't appeal the order at this point. If this was within the time for appeal then, theoretically, the prosecution could appeal and say that the order is incorrect as a matter of law. However, they only have a limited amount of time to do that which has also passed.

As I said, there may be other reasons but I don't believe they can change the order now and particularly if this was the result of a plea because that would also bring up issues as to contractual obligations since a plea bargain is, basically, a contract.

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