VII. JUDGMENT

217

Rule 35: Reduction of Sentence.

(a) Timing of Motion. The trial court may reduce a sentence upon motion filed within 120 days after the date the sentence is imposed or probation is revoked. No extensions shall be allowed on the time limitation. No other actions toll the running of this time limitation.

(b) Limits of Sentence Modification. The court may reduce a sentence only to one the court could have originally imposed.

(c) Hearing Unnecessary. The trial court may deny a motion for reduction of sentence under this rule without a hearing.

(d) Appeal. The defendant may appeal the denial of a motion for reduction of sentence but shall not be entitled to release on bond unless already under bond. If the court modifies the sentence, the state may appeal as otherwise provided by law.

Advisory Commission Comment.

This rule is somewhat similar to its federal counterpart. Under T.C.A. § 40-35-212, the trial judge retains jurisdiction to modify any sentence which is to be served in the jail or workhouse. However, the statute deprives the court of authority to modify a sentence to the department of corrections once the judgment is final in the trial court.

The motion to modify a sentence must be filed within 120 days of the date of the trial court's imposition of sentence. This time period may not be extended or tolled. Unlike the federal rule which also allows a modification after appeal, the 120 days run immediately after the sentence is imposed by the trial judge and not from the mandate of the appellate court.

While the judge may grant a hearing and modify the sentence, there is no requirement that a hearing even be held in the discretion of the court. If the judge denies relief and the defendant is already incarcerated, the defendant is not entitled to a bail pending an appeal of an adverse action under this rule. The policy behind the denial of bail is to prevent a motion to modify and an appeal taken for the sole purpose of keeping the defendant on bond.

The intent of this rule is to allow modification only in circumstances where an alteration of the sentence may be proper in the interests of justice. The modification permitted by this rule is any modification otherwise permitted by the law when the judge originally imposed sentence including but not limited to a transfer to the workhouse or probation to otherwise eligible defendants. If there is a modification, the state may appeal.

This rule does not alter the authority of the court to modify sentences to the jail or workhouse. These modifications are governed by statute. See T.C.A. §§ 40-35-306, 40-35-307, 40-35-311, and 40-35-312.

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