While the sentencing phase of a trial is generally considered the final determination of your case, you may still have some options for appeal, especially if it can be shown that your sentence violates federal or state law. If this is the case, your attorney may employ a number of strategies to try to have your sentence mitigated or even vacated.

When a Sentence May Be Appealed or Challenged

Generally speaking, any sentence can be challenged if it is arguably excessive, unconstitutional or otherwise unlawful. In both state and federal criminal cases, the judge consults a set of established guidelines when determining your sentence. However, there may be times when a judge exceeds his/her authority in the sentencing process, or hands down an excessive sentence that doesn’t fit the crime. (The Constitution protects citizens against “cruel and unusual punishment.”) In other instances, the sentence may be based on harmful errors in the case that might have resulted in a more lenient sentence otherwise, and in still other instances, clerical or procedural errors result in a case being tried in the wrong court jurisdiction. In any of these situations, there’s a significant probability that your sentence violates federal or state law, and a skilled attorney should begin working on your behalf to have the sentence modified or reversed.

Possible Remedies for Unlawful Sentencing

There are several possible ways to obtain post-conviction relief from an illegal sentence, and your attorney will advise you on with strategy or strategies are most appropriate in your case. Options may include:

1. Direct Appeal

Your attorney may appeal the sentence to a higher court, submitting briefs arguing specifics as to why your sentence is either unconstitutional or excessive. If the appeal is successful, the appellate judges may remand the case back to the trial court for modified resentencing, or in a few cases vacate the sentence completely.

2. Petition for Habeas Corpus

This petition does not address your guilt or innocence, but instead directly challenges the legality of your imprisonment. This option is generally only available if you are currently incarcerated and if other forms of appeal have run their course.

3. Other Post-Trial Motions

For other mitigating circumstances in your case, your attorney may file a number of other post-trial motions to help correct your sentence. (For example, if your case was tried by the wrong court or if significant errors occurred during the trial, your attorney may file a Motion for a New Trial, which would effectively negate your sentence and start the trial process over from the beginning.)

The bottom line is that if you are convicted of a crime, your resulting sentence must comply with applicable laws and procedures. If you feel your sentence violates federal or state law in any way, consult your attorney.