TITLE FOUR — SENTENCING
Rule 29. Revision or Revocation of Sentence
Revision or Revocation.
Illegal Sentences. The trial judge, upon the judge’s own motion, or upon the written motion of the prosecutor filed within seven (7) days after the imposition of a sentence, may revise or revoke that sentence if the judge determines that any part of the sentence was illegal.
Unjust Sentences. The trial judge, upon the judge’s own motion, or upon the written motion of a defendant filed within seven (7) days after the imposition of a sentence or within seven (7) days after the issuance of a rescript by the Supreme Court on direct review, may, upon such terms and conditions as the judge shall order, revise or revoke that sentence if it appears that justice may not have been done.
Illegal Sentence Attacked at Any Time. The expiration of the period prescribed by Rule 29(1)(a) does not bar a defendant from attacking an illegal sentence. A defendant may move at any time under Rule 30(1) to correct a sentence imposed in violation of the Constitution of the State of Ridgeway or the laws of the State of Ridgeway.
Illegal Sentence Defined. A sentence is illegal within the meaning of this rule where:
It exceeds the maximum permitted sentence in accordance with sentencing game mechanics, or exceeds the multiplier limitation set in game mechanics, contrary to 6 R. Stat. § 131.310;
It imposes a disposition that the law does not authorize for the offense of conviction, including a sentence of death for an offense not enumerated in 6 R. Stat. § 131.402;
It imposes a period of probation or community control exceeding the period allowed by 6 R. Stat. § 131.620, or a requirement of community service exceeding thirty (30) days contrary to 6 R. Stat. § 131.618;
It imposes a period that the convicted person must wait to expunge the conviction exceeding six (6) months, contrary to 6 R. Stat. § 131.312;
It was imposed upon a conviction the court had no jurisdiction to enter;
It omits a disposition the law requires, or includes a disposition the law forbids; or
It is internally contradictory, indefinite, or incapable of execution as pronounced.
Form of the Motion. A motion under this rule shall be in writing, shall be filed and served as Rule 32 provides, shall identify the judgment and sentence attacked by the case number and by the Bates number of the filing in which the judgment was entered, shall state with particularity each part of the sentence alleged to be illegal or unjust, and shall state the revision sought.
Affidavits. If a party files a motion pursuant to this rule, the party shall file affidavits in support of the party’s position, and the other party may file affidavits in opposition. An affidavit shall be made by a person with personal knowledge of the facts stated in it. The judge may deny a motion filed pursuant to this rule on the basis of the facts alleged in the affidavits without further hearing.
Notice. Service of a motion and of any affidavit filed under this rule is effected upon the clerk’s acceptance of the filing, as Rule 32 provides. If the judge orders that a hearing be held on the motion, the court shall give the parties reasonable notice of the time set for the hearing, and the notice shall be entered upon the docket.
Place and Manner of Hearing. A motion filed pursuant to this rule may be heard by the trial judge wherever the judge is then sitting. The hearing shall be conducted in open court or in the proceeding communications of the case, and shall be maintained on the record. The defendant shall be afforded an opportunity to be heard personally and by counsel before a sentence is revised to the defendant’s detriment.
Limits Upon Revision.
The court shall not revise a sentence so as to increase the punishment imposed after the defendant has begun to serve it, except where the revision is required to correct an illegal sentence.
The court shall not, upon a revision, impose a sentence exceeding the limits prescribed by 6 R. Stat. § 131.310.
Where the original sentence was imposed pursuant to a plea agreement accepted under Rule 12(4), the court shall not revise the sentence beyond the terms of that agreement without first affording the defendant the opportunity to withdraw the plea.
Credit for time served, where allowed under 6 R. Stat. § 131.311, shall be recomputed upon any revision and stated in the revised judgment.
Revision of Conditions of Probation. Where the sentence revised includes probation or community control, the revised order shall state each condition in effect after the revision, and the court shall cause notice of the revised terms and of the expiration of the order to be provided to the sheriff’s office as 6 R. Stat. § 131.614 requires.
Entry and Transmission. A revision or revocation of sentence takes effect upon the entry of the revised judgment upon the docket. The clerk shall record the revised judgment as 3 R. Stat. § 131.102 requires and shall transmit it to the Department of Corrections, which has custody of the defendant under 6 R. Stat. § 132.002.
Sentence of Death. Nothing in this rule authorizes the court to stay the execution of a sentence of death. That power resides in the Governor, as 6 R. Stat. § 131.404 provides. The duties of the clerk under 6 R. Stat. § 131.403 are unaffected by the pendency of a motion under this rule.
No Enlargement of Time. The court shall not enlarge the time for taking any action under this rule except to the extent and upon the conditions stated in this rule, as Rule 46(2) provides.
Appeal. An appeal from a final order under this rule may be taken to the Supreme Court. A defendant may appeal from a sentence, as 6 R. Stat. § 131.804 provides, and the State may appeal from an order of sentencing, as 6 R. Stat. § 131.805 provides. Rule 35 governs. The entry of an appeal does not stay the execution of the sentence; Rule 31 governs.