ineffective assistance of appellate counselUnder the Sixth Amendment to the U.S. Constitution, defendants have a right to an attorney in their criminal case and a right to effective counsel during their trial and appeal of their conviction. If a lawyer is not effective or is negligent, this deprives a defendant of his constitutional right to a fair trial. In some cases, the attorney’s representation can be so inadequate that the court will reverse a guilty verdict. 

If you believe that your lawyer did not adequately represent you when filing your appeal, you may be able to file a motion for post-conviction relief to challenge his representation of you after your appeal is completed. These claims are extremely complicated, and you need the assistance of an experienced post-conviction relief lawyer if you want to achieve a successful outcome.

Understanding When in the Criminal Process You Can Raise Claims That Your Attorney Did Not Competently Represent You 

The first stage of your criminal case is your trial where the prosecutor presents witness testimony and evidence against you and your attorney raises your defenses. At the conclusion of your trial, a judge or jury makes a decision on your guilt. If you are convicted, the judge sentences you. 

After you are sentenced, you have a right to a direct appeal to challenge legal errors in your case and your conviction. Your appeal will be decided by Florida’s appellate court, and you will be sent a copy of the court’s written decision. If your appeal is denied, the appellate court will also send down a mandate that affirms your conviction. 

Claims for the ineffective representation of counsel cannot be raised in an appeal. You must wait until after your appeal has been completed to file a post-conviction motion to raise this type of claim.

How Long Do You Have to File a Post-Conviction Motion for Ineffective Counsel?

On the date the mandate is issued, the time period to file a post-conviction motion begins running. You have two years from the date of your conviction or the date that the mandate is issued to file any post-conviction motions, including one that you did not receive adequate representation by your lawyer at the trial or appellate level. 

What Does Ineffective Assistance of Counsel Mean in a Florida Criminal Case?

Ineffective assistance of counsel means that you did not receive the legal representation that you deserve under the U.S. Constitution. It is not enough to just establish that your lawyer did something wrong. In order to win a claim of ineffective counsel, you must prove the following:

  • Your attorney’s representation was deficient. You must show he made a mistake or failed to perform an act that was outside the range of reasonably competent representation under current professional standards for lawyers. 
  • Your case was prejudiced by your attorney’s incompetence. Your lawyer’s errors or omissions must have affected the outcome or fairness of your trial or appeal or the reliability of the outcome.

You have the right to challenge the adequacy of your lawyer’s representation at your trial and during your appeal. Signs that you received ineffective assistance of counsel include:

  • Failure to interview important witnesses or investigate helpful evidence
  • Failure to raise your affirmative defenses 
  • Failure to file appropriate pretrial motions
  • Failure to convey a plea offer to you or to adequately advise you of the consequences of accepting it
  • Failure to object to prejudicial or inadmissible evidence
  • Failure to seek DNA testing when applicable 
  • Failure to preserve your right to an appeal
  • Failure to present all the errors in your criminal case in your appeal

Types of Post-Conviction Motions You May Be Able to File

In most cases, a post-conviction motion to raise an ineffective assistance of counsel claim must be filed within two years of your conviction or the mandate. However, this time period may be extended if you retained an attorney to file a post-conviction motion and he failed to file it due to his own negligence and not any actions on your part. 

If you file a post-conviction motion and it is granted, you could obtain a reversal of your conviction, a new trial, or a corrected sentence. There are many types of post-conviction motions you may file, including:

  • Rule 3800(a). This is a motion to correct an illegal sentence. 
  • Rule 3800(c). A Rule 3800(c) motion can be filed to ask for a reduction in a criminal sentence.
  • Rule 3.850. A Rule 3.850 motion asks that a sentence be vacated, set aside, or corrected. This is a common motion used to raise an ineffective representation of counsel claim.
  • Rule 9.141(d), ‚Äč This petition is filed in the appellate court claiming ineffective assistance of appellate counsel. 

Contact Us for Assistance in Filing Your Post-Conviction Motion 

Do you believe that you received ineffective assistance of counsel at your trial or during your appeal? Could there be other grounds to challenge your conviction through a post-conviction motion? These issues are extremely complex to identify and properly raise in a Florida criminal case. Your freedom is at stake, so it is crucial to obtain the assistance of an experienced post-conviction relief attorney to file these motions on your behalf.

At the offices of Robert David Malove, we offer a free consultation to discuss your criminal case and how we can assist you. We also offer payment plans so that you can afford the quality legal representation you need. Call our Fort Lauderdale office or fill out our online form to schedule your appointment today.

Robert Malove
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South Florida Criminal Defense Attorney