(Applicable to District Court and Superior Court)
(a) Revision or Revocation. The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence, within sixty days after receipt by the trial court of a rescript issued upon affirmance of the judgment or dismissal of the appeal, or within sixty days after entry of any order or judgment of an appellate court denying review of, or having the effect of upholding, a judgment of conviction, may upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done.
(b) Affidavits. If a defendant files a motion pursuant to this rule, he shall file and serve and the prosecutor may file and serve affidavits in support of their respective positions. The judge may rule on a motion filed pursuant to this rule on the basis of facts alleged in the affidavits without further hearing.
(c) Notice. The defendant shall serve the prosecutor with a copy of any motion and affidavit filed pursuant to this rule. 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.
(d) Place of Hearing. A motion filed pursuant to this rule may be heard by the trial judge wherever he is then sitting.
Rule 29 is drawn in part from Fed.R.Crim.P. 35 and from former G.L. c. 278, §§ 29A (St.1959, c. 167, § 1) and 29C (St.1962, c. 310, § 2). See Rules of Criminal Procedure (U.L.A.) rule 633 (1974).
Subdivision (a). General Laws c. 278, § 29A, which was applicable to sentences imposed upon a plea without trial in the District Court, and § 29C, which was applicable to sentences imposed after plea or trial in the Superior Court provided the 60-day limit incorporated into this subdivision. It should be noted that under §§ 29A and 29C, a sentence could only be revised or revoked within 60 days after imposition; pursuant to this subdivision, a sentence may be revised or revoked at any time so long as the defendant's motion is filed within 60 days after imposition of the sentence, or within 60 days after the finality of the conviction is established upon direct appeal or after such review is denied or withdrawn. This subdivision enlarges the power of the District Court so that it is commensurate with that of the Superior Court under former G.L. c. 278, § 29C so as to enable the judge to revise or revoke a sentence imposed after a trial in the District Court. Under prior practice, a de novo appeal to the Superior Court was deemed to vacate the District Court judgment and to "render immaterial ... all ... errors and irregularities in the proceedings" below. Commonwealth v. Holmes , 119 Mass. 195, 199 (1875). Accord Enbinder v. Commonwealth , 368 Mass. 214, 217 (1975). For that reason, G.L. c. 29A expressly did not apply to appealed cases. Now, under this rule, a claim of appeal from a District Court jury-waived session to a jury session divests the judge who imposed the original sentence of the power to revise or revoke that sentence.
The rule governs reductions of sentences motivated by demands of fairness. It is thus a rule which accords the trial judge broad discretion. As was stated in District Attorney for the Northern District v. Superior Court , 342 Mass. 119 (1961):
Occasions inevitably will occur where a conscientious judge, after reflection or upon receipt of new probation reports or other information, will feel that he has been too harsh or has failed to give due weight to mitigating factors which properly he should have taken into account.
Id. at 128. If within sixty days after sentence has been imposed, the trial judge for any reason feels the sentence that has been imposed is too harsh, he is permitted to reduce it sua sponte, although he is not permitted to consider events occurring after the original imposition. Commonwealth v. Sitko , 372 Mass. 305 (1977). Subdivision (a) speaks only in terms of a motion by the defendant, although in prior practice motions of the Commonwealth to revise or revoke a sentence were not unknown. Commonwealth v. Sitko, supra. The 60-day period established by the rule is absolute, and the trial judge has no power to extend the time within which the motion must be filed or within which the sentence may be altered sua sponte. Mass.R.Crim.P. 46(b); Commonwealth v. Burrone , 347 Mass. 451 (1964). However, under this rule, once the motion is filed, he may act on it at a time later than 60 days.
The view under the common law was that so long as nothing had been done to carry a sentence into execution, "it was, in contemplation of law, in the breast of the court, and subject to revision and alteration." Commonwealth v. Weymouth , 84 Mass. (2 Allen) 144, 145-46 (1862). The modern view is that a sentence may be reduced by judicial action even though the defendant has commenced serving it. District Attorney for the Northern District v. Superior Court , 342 Mass. 119, 126-28 (1961). That an increase in the sentence once execution has commenced is not permitted has, however, long been settled. United States v. Benz , 282 U.S. 304, 307-09 (1931); Ex parte Lange , 85 U.S. (Wall.) 163, 167-74 (1873). A mistake in the mittimus under which a defendant is serving his sentence may be corrected at any time because such a revision does not change the sentence imposed, only the transcription of that sentence. Bolduc v. Commissioner of Correction , 355 Mass. 765 (1969).
Subdivision (b). The objective of subdivision (b) is to encourage the disposition of post-conviction motions upon affidavit. Presently, the rule in Massachusetts is that the use of affidavits in lieu of oral testimony is discretionary with the trial judge. Commonwealth v. Coggins , 324 Mass. 552 (1949). The only change contemplated by this subdivision is that the use of this established procedure is to be extended to all cases where it is deemed appropriate by the trial judge. See Mass.R.Crim.P. 30(c)(3).
Subdivision (c). The provision of Mass.R.Crim.P. 32, relative to service and notice, are incorporated by this subdivision.
Subdivision (d). This provision is paralleled in subdivision (c)(7) of Mass.R.Crim.P. 30 and is intended to expedite the disposition of motions for post-conviction relief.