Correcting an Errant Sentence Versus Changing a Sentence: The Difference Could be Double Jeopardy

Law Firm Newswire



Lakeland, FL (Law Firm Newswire) August 21, 2015 – Is a judge allowed to change a sentence after one has been imposed, while the offender is in jail serving time?

“The short answer in that scenario is, more often than not, no, because this situation is called double jeopardy. It would be wrong on a number of levels,” said Thomas Grajek, a Lakeland, Florida, criminal defense attorney. “No officer of the court, such as a judge, can on their own, without holding a hearing including all relevant parties, re-sentence someone after they have already been sentenced.”

It is one thing to correct an errant sentence and quite another to change a sentence, which crosses over into perilous legal territory. There are, however, instances where sentences may be increased even if an individual has been tried, convicted and is serving time.

One clear example of such a situation is the case of Rolling v. Grammer, 665 F. Supp. 780 (D. Neb. 1987). That particular case was a litany of appeals dealing with Mr. Rolling’s increased sentences after being sentenced for the first time and landing in jail.

During the course of his various appeals, Mr. Rolling faced, after his initial sentence of nine to 12-years, a sentence change that handed him 65-years behind bars. During several other appeals to deal with the 65-year sentence, he eventually received a flat 20-year sentence. He attempted to appeal that once again, without any success.

The sentence was changed in the first place because the court found an error of law (referred to as a plain error) in the first court not sentencing Mr. Rollings according to the language of the law relating to habitual offenders.

It is not unusual to find such exceptions when it comes to dealing with criminal law. In fact, it is often said that for every rule in criminal law, there is generally an exception. “It is for this reason that should you find yourself facing a criminal charge, or in jail and facing a possible sentence extension, make contact as quickly as possible with an experienced criminal attorney,” said Grajek.