Such a move would involve the court changing its ruling on the case.
Howard K. Stern was already tried for conspiracy and other charges for providing the former Playboy Playmate with prescription drugs.
Last month, California's 2nd District Court of Appeal ruled Stern can choose to be sentenced on the two charges he was convicted on or pursue a motion for a new trial. But because of double jeopardy, Stern cannot be retried.
The court said a trial judge erred in dismissing conspiracy convictions against Stern and Smith's psychiatrist, Dr. Khristine Eroshevich, in a case that partially revolved around obtaining prescription drugs for Smith under false names. The defendants were not charged with causing her death.
Superior Court Judge Robert Perry found it was not unusual in the celebrity world for fake names to be used to protect privacy. The appellate court sent the case back to Perry but gave no guidance on what the judge should do next.
If the judge grants a new trial motion, the previous case would have to be dismissed.
Smith died of a drug overdose in 2007.