A post-conviction proceeding involves filing and litigating a motion seeking relief after a criminal conviction. Most requests for post-conviction relief involve claims of ineffective assistance of counsel, claims that prosecutorial misconduct led to a wrongful conviction, allegations that the sentence imposed was illegal, or a request for DNA testing.
If the post-conviction motion is granted, then the judge can grant the following types of relief:
order a new trial;
modify the sentence; or
grant other relief as necessary.
Direct appeals must be initiated within 30 days of a conviction through the filing of a notice of appeal. If the direct appeal is not successful, then the clock begins to run on the filing of post-conviction motions. In most cases, the post-conviction motion must be filed within two years of the date the conviction became final.
Attorney for Post-Convictions Motions in Florida
Call a criminal appellate attorney in Tallahassee, FL, to discuss ways to seek post-conviction relief after a criminal conviction. Many of these motions involve claims of ineffective assistance of the criminal defense attorney at the trial level or prosecutorial misconduct leading to a wrongful conviction.
The attorneys at Pumphrey Law represent clients at every stage of a criminal case including after a wrongful conviction. We help clients with direct appeals, writs of habeas corpus, and post-conviction motions.
Call us at (850) 681-7777 to find out more about the services we provide after a wrongful conviction.
Examples of Post-Convictions Issues in Florida
The post-conviction motion is filed with the trial court and typically addresses issues outside of the four corners of the trial transcripts. Issues that can be raised in a post-conviction motion can include a showing that:
the defendant had ineffective assistance of counsel at trial;
the plea was coerced;
the sentence was illegal;
DNA testing results would show that the defendant is innocent;
the prosecutor committed misconduct or presented false testimony or evidence;
a witness committed perjury;
evidence of juror misconduct; or
a showing that the law changed after the verdict.
A criminal defense attorney can help you file the Rule 3.850 motion. The attorney can also help you litigate the issues after the court schedules an evidentiary hearing.
An evidentiary hearing must be held on an initial 3.850 motion whenever the movant makes a facially sufficient claim that requires a factual determination. Because a court’s decision whether to grant an evidentiary hearing on a rule 3.850 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. If the Rule 3.850 motion is not successful after the evidentiary hearing, then the trial court’s rulings can often be appealed to a higher court.
If the Rule 3.850 motion is not successful after the evidentiary hearing, then the trial court’s rulings can often be appealed to a higher court.
Types of Post Conviction Motions in Florida
Florida law provides for several different types of post-conviction motions including:
Motion to Correct Illegal Sentence
Under Florida Rules of Criminal Procedure § 3.800, a defendant can file this motion if they have been sentenced to an illegal sentence that is obviously illegal. There is no limit for when this motion can be filed, and the trial court judge is permitted to correct an illegal sentence at any time. An example of an illegal sentence is if the trial court exceeded the maximum statutory sentencing requirements for the alleged crime.
Motion to Set Aside or Vacate Judgment or Sentence This motion can be filed up to two years after your sentence has become final. This motion can be filed for different reasons listed in Florida Rules of Criminal Procedure § 3.850, but the most likely reason is for ineffective assistance of counsel. For example, if you attorney did nothing to assist you in your criminal trial, and you were prejudiced at trial because of your attorney’s lack of attention, you can file this post-conviction motion to have your judgment overturned.
Petition for Writ of Habeas Corpus
If an appeal was not filed, or previous appeals were not successful, your attorney can file a writ of habeas corpus on your behalf. You may only file this type of writ of habeas corpus if you were denied a constitutional right or if the trial court did not have jurisdiction over you. This is an exceptional remedy, rarely filed, and courts are hesitant to grant this type of writ.
This article was last updated on Friday, March 24, 2017.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.