The law does not require you to file a motion for post-conviction relief even if you have grounds to file such a motion. If you do decide to move forward, however, then in most cases, you have two years to file a motion for post-conviction relief.
When to Consider a 3.850 Motion for Post-Conviction Relief
Asking the court for post-conviction relief is a strategic decision. Post-conviction relief motions are usually considered when you have been convicted and you claim that:
- Your conviction or sentencing was influenced by ineffective assistance of counsel. If your lawyer made mistakes that a reasonable lawyer would not have made and those mistakes likely affected the outcome of your trial or your sentence, you might consider a 3.850 motion for post-conviction relief. Some examples of ineffective assistance of counsel including missing filing deadlines, failing to interview witnesses, failing to object to inadmissible evidence, and failing to raise proper defenses.
- There is newly discovered evidence that could affect your conviction or sentencing. Newly discovered evidence is evidence that was not reasonably available to you at the time of trial and that could make a difference in the outcome of your case. DNA evidence or a previously unknown witness may be examples of newly discovered evidence in some circumstances.
A successful motion for post-conviction relief does not mean that your conviction will be overturned or that your sentence will be vacated. Instead, the prosecution may try you again for the same crimes. In some cases, the prosecution will waive this right and the charges against you will be dismissed, and in other cases, a new trial will go forward.
Talk to a Post-Conviction Relief Lawyer Before Filing a Motion
A motion for post-conviction relief is one way to protect your rights, but it is not the only option available to people who are convicted of crimes, and it may not be the best option for you. Your lawyer can review all of your options with you including post-conviction relief motions, writs of habeas corpus, and direct appeals.
Contact Robert Malove today to figure out how best to protect your rights and when to take action after a Florida conviction.