You have a short time period to file a writ of habeas corpus after a criminal conviction. However, this deadline can be extended in Florida if you timely file certain post-conviction motions.
What Is a Writ of Habeas Corpus?
Under the Florida and United States Constitutions, you have the right to file a writ of habeas corpus if you are being locked up in a federal or state correctional facility. This type of writ in state or federal court.
When you file your petition, you are asking the judge to decide whether your imprisonment is lawful. If the court determines that your confinement is illegal, you may be released from jail or prison—unless you are retried within a certain amount of time.
A writ of habeas corpus is not an appeal of a criminal conviction and is not the proper way to challenge procedural errors at trial or violations of Florida law. It is only used to challenge errors that would make your detention unlawful.
How Long Do You Have to File a Writ of Habeas Corpus?
Although a writ of habeas corpus can be filed in limited circumstances prior to a conviction, it is generally filed after you have exhausted your options in state court after your conviction. There is a statute of limitations, or deadline, under federal law to file this writ.
This deadline is one year from the date on which your state court judgment became final at the conclusion of your direct appeal process. If you file your writ of habeas corpus after the time period to do so has expired, the judge would most likely dismiss your petition.
What Florida Post-Conviction Motions Can Toll the Deadline to File a Writ of Habeas Corpus?
If you file certain Florida post-conviction motions, they will toll the one-year time period you have to file a writ of habeas. Tolling means that the deadline to file your petition is stopped for a period of time, and this gives you additional time beyond one year to file your writ of habeas corpus.
Florida post-conviction motions that toll this deadline include:
- Rule 3.800(a). You can file a Rule 3.800(a) motion to correct your sentence if it is illegal.
- Rule 3.800(c). If you file a Rule 3.800(c) motion, you are asking the judge to reduce your criminal sentence because it is improper for some reason.
- Rule 3.850. A Rule 3.850 is commonly used to raise a claim of ineffective assistance of counsel. In the motion, you would be asking that your sentence be vacated, set aside, or corrected.
- Rule 9.141. Florida Rule of Appellate Procedure 9.141 is another mechanism that allows you to raise a claim of ineffective assistance of counsel during your appeal. This also tolls the time period to file a writ of habeas corpus.
Filing a writ of habeas corpus in Florida state courts or in federal court is extremely complicated, and your petition will be dismissed if you do not follow the complex procedural rules. In order to have the best chance of success, you need the assistance of an experienced post-conviction relief lawyer.
Call our Fort Lauderdale office or start a live chat to schedule a free consultation to learn how we can assist you. We offer payment plans and will be happy to discuss them with you at your initial appointment.
