State v. Gagne

570 A.2d 825, 1990 Me. LEXIS 61

Opinion

CLIFFORD, Justice.

The defendant, Richard C. Gagne, appeals from an order of the Superior Court (Penobscot County, Chandler, J.) denying his motion for reduction of sentence brought under M.R.Crim.P. 35(c). Because the motion was untimely and should not have been entertained by the trial court, we remand for its dismissal.

Gagne was convicted of six counts of gross sexual misconduct, 17-A M.R.S.A. § 253 (1983 & Supp.1989), and was sentenced on June 2, 1988.¹ His appeal to this court was unsuccessful. See State v. Gagne, 554 A.2d 795 (Me.1989).²

Gagne filed a motion for reduction of sentence on July 13, 1989, after he commenced serving the sentence and more than one year after his sentence was imposed. M.R.Crim.P. 35(c)(1)³ requires that any reduction in sentence, after commencement of execution of that sentence, occur within one year after the sentence is imposed. See Reed v. State, 295 A.2d 657, 659-60 (Me.1972). Gagne’s motion was not made within one year, was untimely, and should not have been entertained by the court. 1 Cluchey & Seitzinger, Maine Criminal Practice § 35.2, at 35-11 (1989).

The entry is:

Order of the Superior Court denying Motion for Reduction of Sentence is vacated. Remanded for dismissal of the motion.

All concurring.

Footnotes

1

. Gagne was sentenced to twelve years imprisonment on Count I, with all but eight years suspended, and six years probation. He received concurrent eight-year sentences on each of the other counts.

2

. Gagne’s appeal of his sentence, not having been taken within twenty days of its entry, was dismissed by the Appellate Division as untimely. See M.R.Crim.P. 40(c); see also 15 M.R.S.A. §§ 2141-2144 (1980), repealed by P.L.1989, ch. 218, §§ 1-4 (effective Sept. 30, 1989), 15 M.R. S.A. §§ 2151-2157 (Supp.1989).

3

. M.R.Crim.P. 35(c) provides as follows:

(c) Reduction of Sentence After Commencement of Execution.

(1) Timing of Motion. Within one year after a sentence is imposed and before the execution of the sentence is completed, on motion of the defendant or the attorney for the state, or on the court’s own motion, the justice or judge who imposed sentence may reduce a sentence.

(2) Ground of Motion. The ground of the motion shall be that the original sentence was influenced by a mistake of fact which existed at the time of sentencing.