Davis v. State

BOOCHEVER, Justice,

joined by MATTHEWS, Justice, dissenting.

Under Criminal Rule 35(a), a motion to reduce a sentence can be made within 120 days after the superior court receives our mandate on an appeal. The rule does not distinguish between appeals on the merits of the conviction and sentence appeals. In this case, once the late appeal was allowed to be filed, without conditions or restrictions, Davis was entitled to the rights specified in Rule 35(a) to move for a reduction of his sentence within 120 days after the superior court’s receipt of our mandate. The rule as presently written permits repeated motions to reduce a sentence, as long as filed within 120 days after a supreme court mandate or order issued as the result of a prior appeal.¹ The policies underlying the rule may be addressed by consideration of a change in its terms. In the absence of such a change, Davis should be entitled to the rights granted by the rule.

1 . The motion would be barred by the doctrine of res judicata if not based on new grounds. Davis contends that his rehabilitation since his last hearing is a new ground for relief.