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Rule 35. Reduction, Correction or Suspension of Sentence.
(a) Correction of Sentence. The court may correct an illegal sentence at any time.
(b) Modification or Reduction of Sentence. The court
(1) may modify or reduce a sentence within 180 days of the distribution of the written judgment upon a motion made in the original criminal case;
(2) may not entertain a second or successive motion for similar relief brought under this paragraph on behalf of the same defendant;
(3) may not reduce or modify a sentence so as to impose a term of imprisonment that is less than the minimum required by law;
(4) may not reduce a sentence imposed in accordance with a plea agreement between the defendant and the prosecuting attorney that provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum; and
(5) may not reduce a sentence below the minimum specified in a plea agreement between the defendant and the prosecuting attorney.
(c) Victim's Rights. The victim may comment on motions made under this rule as follows:
(1) When an individual convicted of a crime against a person or arson in the first degree files a motion to modify or reduce a sentence, the court shall, if feasible, send a copy of the motion to the Department of Corrections sufficiently in advance of any scheduled hearing or briefing deadline to enable the department to notify the victim, as directed by AS 12.55.088(e).
(2) The court shall provide copies of the victim's comments to the prosecuting attorney and to the person filing the motion to reduce or modify a sentence, or the person's attorney.
(3) The court shall consider the comments of the victim when relevant, and any response offered by the prosecuting attorney or the person filing the motion, in deciding whether to reduce or modify a sentence.
(4) If more than one person who qualifies as a victim under paragraph (d)(2) of this rule requests the opportunity to exercise rights under this paragraph, the court shall allow the person designated under AS 12.55.172 to exercise those rights, or if a person has not been designated under AS 12.55.172, the court shall designate one person for purposes of exercising rights under this paragraph.
(d) Definitions. In this rule,
(1) "crime against a person" has the meaning given in AS 33.30.901; and
(2) "victim" has the meaning given in AS 12.55.185.
(e) Appointed Counsel. An indigent defendant not already represented by counsel may request the court to appoint counsel for purposes of filing a motion under this rule. If the defendant is represented by appointed counsel, counsel may file with the court and serve on the prosecuting attorney a certificate that counsel
(1) does not have a conflict of interest;
(2) has completed a review of the facts and law related to sentence;
(3) has consulted with the applicant and, if appropriate, with trial and appellate counsel; and
(4) has determined that a motion under this subsection would not warrant relief by the court.
(f) Withdrawal of Appointed Counsel and Dismissal. If appointed counsel has filed a certificate under (e) of this rule, and it appears to the court that the applicant is not entitled to relief, the court shall indicate its intention to permit counsel to withdraw and, if appropriate, to dismiss the motion. The applicant and the prosecuting attorney shall be given an opportunity to reply to the proposed withdrawal or dismissal. If the applicant files a response and the court finds that a motion under this rule would not warrant relief, the court shall permit counsel to withdraw and, if appropriate, dismiss the motion. If the court finds that a motion under this rule may warrant relief, the court may direct that the proceedings continue or take other appropriate action.
(g) Relaxing the Time Period for Request. A court may not relax by more than 10 days the time period in which a request to modify or reduce a sentence under (b) of this rule must be filed.
(Adopted by SCO 4 October 4, 1959; amended by SCO 30 effective February 1, 1961; amended by SCO 49 effective January 1, 1963; by SCO 98 effective September 16, 1968; by SCO 319 effective August 16, 1978; by SCO 426 effective August 1, 1980; by SCO 477 effective August 17, 1981; by SCO 554 effective April 4, 1983; and by SCO 644 effective September 15, 1985; by SCO 822 effective August 1, 1987; by SCO 974 effective January 15, 1990; SCO 979 effective August 28, 1989; by SCO 1240 effective July 15, 1996; and by SCO 1341 effective September 10, 1998)
Note to SCO 1240: Ch. 79 §§ 29-31 SLA 1995, effective July 1, 1995, repealed and reenacted paragraphs (a) and (b) of Criminal Rule 35 and added paragraphs (e) and (f). Sections 1, 2, and 5 of this supreme court order are adopted for the sole reason that the legislature has mandated the amendments.
Sec. 42 of ch. 79 SLA 1995 includes the following statement regarding the applicability of the changes to Criminal Rule 35: "Notwithstanding Rule 35, Alaska Rules of Criminal Procedure, as amended in secs. 29 - 31 of this Act, the trial court, under Rule 35(b), as amended by the Act, may reduce the sentence of a defendant sentenced before the effective date of this section if the defendant took an appeal and the sentence reduction occurs within 120 days of the day that jurisdiction is returned to the trial court under Rule 507(b), Alaska Rules of Appellate Procedure, unless the defendant petitions the United States Supreme Court for certiori, in which case the 120 days commences on the day that the Supreme Court denies relief."
Ch. 7 § 6 SLA 1996, effective June 27, 1996, has the effect of amending Criminal Rule 35(b) as revised by the legislature in 1995. Ch. 7 § 6 SLA 1996 amends AS 12.55.125(j) to allow a defendant sentenced to a mandatory 99-year term of imprisonment under AS 12.55.125(a) to apply once for a modification or reduction of sentence after serving one-half of the mandatory term without consideration of good time earned under AS 33.20.010. It also amends AS 12.55.125(j) to allow a defendant sentenced to a definite term of imprisonment under AS 12.55.125(l) to apply once for a modification or reduction of sentence after serving the greater of one-half the definite term or 30 years.
Note: Paragraphs (c) and (d) of Criminal Rule 35 were added by ch. 59, § 28, SLA 1989.
Note: Ch. 79 § 25 SLA 1992, effective September 14, 1992, has the effect of amending Criminal Rule 35(b)(2). This legislation added AS 12.55.125(j) which allows a defendant sentenced to a mandatory 99-year term of imprisonment under AS 12.55.125(a) to apply for a modification or reduction of sentence after serving one-half of the mandatory term without consideration of good time earned under AS 33.20.010.
Note to SCO 1341: Paragraph (g) of Criminal Rule 35 was added by § 12 ch. 95 SLA 1998. Section 5 of this order is adopted for the sole reason that the legislature has mandated the amendment.
Cross References
(b)00CROSS REFERENCES: AS 12.75.010
(c)00CROSS REFERENCES: AS 12.55.080; AS 12.55.090
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Last Modified 7/14/1999
