Claim
Identify your issue: name the specific constitutional, sentencing, plea, credit, DNA, or attorney-performance problem.
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A Florida Post-Conviction Relief Attorney Builds a Remedy Map
The phrase “post-conviction relief” does not refer to a single remedy or a universal second chance after conviction. “Post-conviction relief” is an umbrella term for a group of procedures, each with its own court, deadline, pleading requirements, burden of proof, and possible remedy. The first task is understanding: what happened, can it be proved, which rule addresses it, and what relief can that rule authorize?
Hani Demetrious has been a criminal trial attorney for nearly 20 years and served as a public defender and conflicts counsel before joining our firm to head its Appeals and Postconviction department. Demetrious has litigated cases in all six Florida district courts of appeal, the Florida Supreme Court, all three federal districts in the state, and trial courts from Pensacola to Key West. His trial background helps with the first question to ask when considering an appeal: is the concern visible in the trial record or does it depend on evidence outside it? That distinction can separate direct appeals from collateral review and determine which court can hear the claim.
Court
Match the claim to the sentencing court, appellate court, or federal district court.
Proof
Separate record evidence from affidavits, correspondence, witnesses, and other evidence from outside the record.
Deadline and remedy
Calculate finality and identify what the governing procedure can actually change. In other words, what result is legally available?
Florida Post-Conviction Relief Procedures Use Different Rules for Different Problems
Florida provides several distinct post-conviction procedures. Proceeding under the wrong rule can lead to dismissal, waiver, or the wrong requested relief.
Illegal sentence
May be filed at any time to address a sentence no judge could lawfully impose or one that facially violates statutory or constitutional limits.
Reduction of sentence
A discretionary request due within 60 days after the judgment and sentence become final. It cannot be used to evade a negotiated plea and if a court denies the request, the denial is not appealable. It cannot be used to evade a negotiated plea and if a court denies the request, the denial is not appealable.
Jail-credit error
A sworn, detailed motion due within one year after finality, identifying the incarceration periods, credit claimed and awarded, other pending charges, and any waiver.
Juvenile sentence review
Provides review for eligible juvenile offenders after 15, 20, or 25 years, depending on the sentence and statute.
Collateral attack
Covers specified constitutional, jurisdictional, plea, sentencing, and other collateral grounds. The ordinary period is two years from mandate or expiration of the notice-of-appeal period.
Post-conviction DNA testing
May be filed at any time but requires detailed allegations about the evidence, identity, prior testing, admissibility, innocence or mitigation, and probable effect.
Ineffective appellate counsel
A petition generally due within two years of mandate in the appellate court that heard the direct appeal, with a narrow four-year exception for affirmative misinformation.
Federal habeas review
A separate federal remedy for state prisoners, with exhaustion, deference, and statute-of-limitations requirements that must be tracked alongside state court litigation.
The current Florida Rules of Criminal and Appellate Procedure control, not the rules in effect when the relief motion was filed.
Rule 3.850 Requires More Than the “Ineffective Assistance” Label
A Rule 3.850 motion challenges a judgment or sentence on specified collateral grounds, including constitutional violations, jurisdictional issues, an involuntary plea, an unlawful sentence, and other recognized grounds. Post-conviction complaints are not legally sufficient if they simply criticize former counsel.
Under Strickland v. Washington, an ineffective assistance of counsel claim requires both deficient performance and resulting prejudice. The motion must first identify the particular act or omission showing deficient attorney performance and explain why the conduct fell outside the broad range of professionally reasonable performance. Then, the motion must also connect that deficiency to a legally sufficient probability of a different result at trial. Failure on either part defeats the claim.
Focus your analysis on specific facts. For example, a missing witness claim should address who the witness is, whether the witness was available at the time of trial, what the testimony would have been, what counsel knew, and how the testimony could have affected the proceeding. A plea advice claim should be checked against the plea agreement and plea colloquy. It’s the attorney’s role to review the existing record and determine whether it supports a post-conviction claim or show that more evidence is needed before anyone can sign a sworn motion.
Identified act or omissionProfessional standard at the timeAvailable supporting evidenceCausal path to prejudiceLawful requested remedy
Calculate Post-Conviction Deadlines Using a Reliable Finality Date
Deadline calculation is part of the merits review of a case, not a separate administrative step. Most Rule 3.850 motions face a two-year deadline tied to finality, generally measured from the appellate mandate if there was a direct appeal, or from expiration of the appeal period if no appeal was filed.
That calculation needs to be pulled directly from the docket. Counsel needs the sentencing date, written judgment, notice of appeal, appellate decision, any rehearing activity, mandate, and any prior collateral filings. A family should not rely on “about two years,” the date someone entered custody, or an old online calculator. Any of those can be wrong and cost you the entire claim.
Federal habeas timing runs separately and can be shorter. A Florida motion that appears timely under state law does not automatically meet a federal deadline. Federal review also raises exhaustion and tolling questions. Review the state and federal timelines to make sure all deadlines are met.
Ineffective Appellate Counsel Is Raised in the Appellate Court
A claim that appellate counsel was ineffective generally proceeds under Florida Rule of Appellate Procedure 9.141(d) and is filed in the same appellate court that heard the direct appeal. It is different from a Rule 3.850 claim directed at trial counsel in the sentencing court.
The petition must identify a specific, meritorious issue that appellate counsel failed to raise and explain how the omission undermined confidence in the appellate result. Simply naming a topic counsel didn’t raise is not enough. The petition needs to include a supportable issue, the relevant record, controlling authority, and a prejudice analysis.
Under Rule 9.141(d), the petition must describe the prior proceedings, the relief sought, the specific acts constituting the alleged ineffective assistance, and the basis for the appellate court's jurisdiction. It cannot exceed 13,000 words or 50 pages, must be served on the Florida Attorney General, and generally must be filed within two years after mandate. A narrow four-year exception applies when the petitioner alleges under oath, with a specific factual basis, that counsel affirmatively misled them about the outcome of the appeal.
Post-Conviction DNA and Juvenile Review Require Their Own Evidence
Rule 3.853 treats post-conviction DNA testing as a distinct remedy with its own proof requirements. A motion must describe the physical evidence, its location if known, prior testing, the disputed identity issue, admissibility, and why favorable results would probably change the outcome on guilt or sentencing. From there, the court may deny a facially insufficient motion, order the State to respond, or hold a hearing. The practical first step is often evidence preservation and chain-of-custody investigation to prepare for a hearing.
Rule 3.802 serves a different population and purpose. Eligible juvenile offenders may seek sentence review after the statutory period tied to their sentence has expired. If the juvenile qualifies, the hearing looks at maturity, rehabilitation, current risk, remorse, development at the time of the offense, education and programming, abuse history, evaluations, the victim's position, and other factors the court finds appropriate.
DNA litigation turns on evidence, identity, testing, and admissibility. Juvenile sentence review turns on eligibility and a developed record of rehabilitation.
A Useful Review Produces an Honest Remedy Map
For the first substantive review, gather all materials potentially relevant to your case: the written judgment and sentence, the complete docket, plea or trial materials, appellate briefs and mandate, every prior post-conviction filing, correspondence with former counsel, and the evidence proposed for any outside record claim. Collect complete transcripts and documents rather than excerpts.
The review should answer eight practical questions:
- What precise result is the client asking the court to change?
- Is the concern shown in the existing record or dependent on outside evidence?
- Which court has authority to hear it?
- Which rule supplies the procedure for appeal?
- What date triggered the filing period?
- What facts and documents support each required element of the claim?
- What procedural defenses or contrary record evidence must be confronted?
- What remedy can the court lawfully grant if the claim succeeds?
In answering these questions, you and your attorney may find that more records are needed, that a different procedure applies, or that no viable claims remain. That is still useful work. It provides a foundation from which to make the next decision.
The Firm’s Fort Lauderdale Office Is Open 24 Hours
The Law Offices of Robert David Malove
200 SE 9th St, Fort Lauderdale, FL 33316
200 SE 9th St, Fort Lauderdale, FL 33316
Open 24 Hours
(954) 861-0384Frequently Asked Questions
What is post-conviction relief in Florida?
Post-conviction relief is a group of procedures that allow a court to review specific problems after conviction or sentence. The correct procedure depends on the claim. Examples include Rule 3.850 collateral relief, illegal-sentence correction, jail-credit correction, juvenile sentence review, DNA testing, and ineffective assistance of appellate counsel.
How long do you have to file a Rule 3.850 motion?
Most Rule 3.850 motions are subject to a two-year deadline running from finality, subject to the current rules and defined exceptions. The start date depends on whether there was a direct appeal and, if so, when the mandate issued. Federal habeas deadlines are separate and should be calculated at the same time, not treated as an afterthought.
Does ineffective assistance of counsel automatically overturn a conviction?
No. Under Strickland v. Washington, the claimant must establish both deficient performance and the legally sufficient prejudice that resulted. The motion must identify specific conduct, supporting facts, and a causal connection to the result. It’s not enough to rely on hindsight or general dissatisfaction with the case.
Is an illegal-sentence motion the same as a Rule 3.850 motion?
No. Rule 3.800(a) addresses a narrow category of illegal sentences. Rule 3.850 addresses a different set of defined collateral grounds. The court, deadline, pleading requirements, and available remedy depend on the actual problem.
Can post-conviction relief introduce evidence outside the trial record?
Some collateral claims may rely on permitted outside evidence, such as testimony or correspondence relevant to an ineffective assistance claim. Other claims rely mainly on the existing record. Counsel should identify the governing rule before collecting or presenting evidence.
Talk With a Florida Appeals and Post-Conviction Attorney
Robert Malove is a Board Certified criminal trial attorney, one of fewer than 400 in the state out of more than 100,000 active members of The Florida Bar. The distinction requires substantial contested-case and jury-trial experience, continuing legal education, peer review, and periodic recertification.
If you or a family member has been convicted, sentenced, or denied relief, the next step is a record-specific review rather than an assumption that every unfavorable result creates another appeal. Fill out this form or call (954) 861-0384 to discuss the judgment, docket, record, prior filings, and deadlines with the firm, which represents clients in Florida criminal appeals and post-conviction matters without guaranteeing any particular result.
Attorney advertising. This page provides general information, not legal advice. Deadlines and available remedies depend on the record, the finality date, and the governing rules.