Senate Bill 2206

AN ACT TO AUTHORIZE A COURT IN A CRIMINAL MATTER TO SET A DATE OF SENTENCING FOR THE REVIEW OF THE CRIMINAL SENTENCE; TO AUTHORIZE A COURT IN WHICH CRIMINAL SENTENCING WAS ENTERED UPON THE COURT'S OWN MOTION OR UPON A MOTION OF AN ELIGIBLE DEFENDANT TO REDUCE OR MODIFY THE SENTENCE ON THE GROUND THAT SUCH SENTENCE IS GREATER THAN NECESSARY TO ACHIEVE THE PURPOSES OF SENTENCING; TO PROVIDE ELIGIBILITY REQUIREMENTS FOR A CRIMINAL DEFENDANT; TO PROVIDE THAT A DEFENDANT WHO IS SERVING THE MINIMUM SENTENCE PERMITTED UNDER THE CRIMINAL LAW SHALL NOT BE ELIGIBLE TO FILE A MOTION UNDER THIS SECTION; TO PROVIDE THAT A MOTION UNDER THIS SECTION SHALL BE REFERRED FOR DETERMINATION TO THE JUDGE WHO IMPOSED THE ORIGINAL SENTENCE UPON THE DEFENDANT OR TO THE COURT THAT IMPOSED THE SENTENCE IF THE JUDGE IS NO LONGER A JUDGE OF A COMPETENT JURISDICTION; TO PROVIDE A PROCEDURE FOR THE JUDGE REVIEWING THE MOTION; TO AUTHORIZE A RENEWED MOTION AFTER A CERTAIN AMOUNT OF TIME UPON DENIAL OF THE MOTION; TO PROVIDE A RIGHT OF APPEAL; TO PROHIBIT A DEFENDANT FROM AGREEING TO WAIVE HIS OR HER RIGHT TO RELIEF UNDER THIS SECTION AS A COMPONENT OF A PLEA AGREEMENT; TO AMEND SECTION 99-39-7, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. At sentencing in a criminal matter, a court may set a date for the review of the criminal sentence pursuant to Section 2 of this act.

SECTION 2. (1) Upon the court's own motion or upon a motion of an eligible defendant, the court in which judgment was entered may reduce or modify the sentence on the ground that such sentence is greater than necessary to achieve the purposes of sentencing.

(2) A defendant is eligible for relief under this section when he or she:

(a) Has been convicted, either by plea or verdict, of a felony offense and is in the custody of the Department of Corrections;

(b) Is more than two (2) years away from conditional release at time of filing the motion;

(c) Was sentenced to an indeterminate term with an aggregate minimum term of ten (10) years or more or an aggregate determinate term of ten (10) years or more;

(d) Has served:

(i) At least one-third (1/3) of the aggregate minimum term of an indeterminate sentence or at least one-third (1/3) of an aggregate determinate sentence;

(ii) Where the defendant is serving two (2) or more sentences that run consecutively, the time required to be served for eligibility under paragraph (a) of this subsection (2) or eight (8) years, whichever is less; or

(iii) The motion is filed on or after the date of review set by the sentencing judge;

(e) Is not currently serving a sentence for a crime of violence as provided in Section 97-3-2;

(f) Is not currently serving a sentence for an offense that included as an element the infliction of serious physical injury; and

(g) If the defendant has appealed from a judgment or sentence that is the subject of relief pursuant to this section, such appeal has been finally determined, and the defendant does not have a motion for post-conviction collateral relief, under Title 99, Chapter 39, Article 1, Mississippi Code of 1972, pending before a court of proper jurisdiction. Nothing in this paragraph (g) shall be construed to require that the defendant has taken a direct appeal or made a motion for post-conviction collateral relief under Title 99, Chapter 39, Article 1, Mississippi Code of 1972 in order to be eligible for relief pursuant to this section.

(3) An defendant who is serving the minimum sentence permitted under the penal law shall not be eligible under this section.

(4) A motion brought pursuant to this section shall be referred for determination to the judge who imposed the original sentence upon such defendant. If, at the time of the application, the original sentencing judge is no longer a judge of a court of competent jurisdiction, then the application shall be assigned to another judge of the court which imposed the original sentence upon such defendant.

(5) In deciding the motion, the court shall consider the principles of rehabilitation, punishment and deterrence, the rehabilitation demonstrated by the defendant, and the promotion of the defendant's successful reentry and reintegration into society, as well as public safety. The court may consider any facts or circumstances relevant to the imposition of a new sentence that are submitted by such defendant or the district attorney, including, but not limited to:

(a) Age, personal circumstances, and medical condition, including conditions that existed at the time of the original sentencing;

(b) The defendant's institutional record of confinement; and

(c) Whether the defendant has availed himself or herself of educational, therapeutic and vocational opportunities while imprisoned.

(6) The court shall not order a new pre-sentence investigation and report. The court shall offer the defendant an opportunity for a hearing. If the court finds that the sentence is greater than necessary to achieve the purposes of sentencing, the court shall grant the motion and enter an order modifying the sentence to any lesser authorized term of imprisonment. The order may also direct that the new sentence run concurrently with any other term of imprisonment being served by the defendant. The court shall place its reasons on the record for modification of the sentence, or denial of modification.

(7) In the event that a defendant is denied relief under this section, or in the event that the defendant is denied the full reduction sought, he or she may bring a new motion at any time after three years from the date of denial of the previous motion.

(8) An appeal may be taken as of right from an order denying a motion made pursuant to this section.

(9) No defendant shall be required or permitted to waive eligibility for relief pursuant to this section as part of a plea of guilty sentence or any agreement related to a conviction for a felony offense, and any such waiver shall be deemed void and wholly unenforceable.

(10) An order modifying the sentence pursuant to this section shall not affect the validity or status of the underlying conviction.

(11) Except where the procedure of Title 99, Chapter 39, Article 1, Mississippi Code of 1972 conflicts with the procedure authorized under this section, motions for relief under this section shall take the same form as motions under Title 99, Chapter 39, Article 1, Mississippi Code of 1972.

(12) The relief provided for by this section is in addition to any relief the defendant is entitled to under Title 99, Chapter 39, Article 1, Mississippi Code of 1972.

SECTION 3. Section 99-39-7, Mississippi Code of 1972, is amended as follows:

99-39-7. (1) The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the petitioner's conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court. The procedure governing applications to the Supreme Court for leave to file a motion under this article shall be as provided in Section 99-39-27.

(2) No motion shall be filed under this article where the petitioner has a pending motion before a court of proper jurisdiction pursuant to Section 1 of this act.

SECTION 4. This act shall take effect and be in force from and after its passage and shall apply to offenses committed before, on or after the date of passage.