Post-conviction relief is only possible under certain very specific circumstances. Learn about what those circumstances are by reading our post-conviction relief case results. We tell our clients’ stories so that you can learn more about the process and potential outcomes of these kinds of cases
DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients' cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case.
Trial Counsel Deemed Ineffective - 45-Year Prison Sentence Reduced to 10 Years! Florida Rule of Criminal Procedure 3.850 Motion Granted
Case ID: 2018CF002681A Date: April 1, 2021
Our client entered into a plea agreement after violating his probation in several cases in St. Lucie County, Florida. Prior to sentencing our client was released on his own recognizance to settle his affairs. The day before sentencing our client was arrested in Palm Beach County, Florida. Our Client was not release from the Palm Beach County jail until 2:28 a.m. on February 8, 2019. His sentencing was scheduled for the morning he was release and the Client was unable to make it to St. Lucie County Courthouse as he was released without any funds on his person, he did not own a car, and he could not get in touch with anyone to drive him from Palm Beach County Jail to St. Lucie County Courthouse for his sentencing hearing. Our Client did call his Attorney’s office prior to sentencing and spoke with an assistant of the Attorney to advise them of his dilemma. The Attorney’s assistant notified the Attorney prior to the sentencing hearing that the Client called and his dilemma.
At the sentencing hearing the State sought for the Client to be sentenced in absentia and our Clients Trial Counsel did not advise the Court that first there needed to be a hearing for evidence to be put forth that the failure to appear was willful. The Trial Court agreed with the State and sentenced the Client to 30-years in prion on several of his cases, but deferred sentencing on another case as the Client was not given notice on that case. One month later, our client was sentenced in absentia to 15-years in prison, which was ordered to run consecutive to the 30-years in prison he was already sentenced to, giving the Client a total of 45-years in prison.
The Client hired the Law Office of Robert David Malove to review his case and make a determination if a Rule 3.850 motion could be filed. After reviewing the case file and speaking with the Client we determined that our Client’s Constitutional right were violated and we filed a one ground 3.850 motion. The Rule 3.850 motion alleged that Trial Counsel was ineffective for failing to object to the Client being sentenced in absentia and provide the Trial Court with details as to why the Client was absent from both sentencing hearings.
After the Trial Court reviewed the Rule 3.850 motion it directed the State to file a response. The State’s response argued that Trial Counsel was not ineffective for various reasons. We filed a motion for leave to reply to the State’s response and the Trial Court granted the motion. We filed a reply and the Trial Court ordered an Evidentiary Hearing. At the Evidentiary hearing we presented evidence to show our Client did not willfully fail to appear at either of his sentencing hearings. We presented a stack of evidence to support this conclusion and prior to the Evidentiary hearing the State conceded Trial Counsel was ineffective.
Our Client’s 45-year prison sentence was vacated and he was resentenced to 10-years in prison with credit for all time served in jail and prison.
Trial Court Rules That Trial Counsel Was Ineffective For Failing to Object to the Court Considering Impermissable Uncharged Conduct & The Trial Court Criticizing The Defendant for Seeking Bond Rather Than Using Money to Pay Restitution - New Sentence Hearing Awarded Before a Different Judge
Case ID: 14-24409 Date: Jan. 4, 2021
Our Client was charged with grand-theft and entered an open plea to the trial court. Trial counsel filed a motion for downward departure and during the hearing the judge chastised the Client for posting a bond and paying for a GPS monitor on bond, rather than using that money to pay the victim’s restitution. Additionally, before imposing sentence the trial court stated it was considering post charged allegations that the Client was never charged with of tax evasion and fraud on the court. At no time did trial counsel ever object to these impermissible considerations and/or move to disqualify the judge. The Defendant was sentenced to 15-years in prison followed by 15-years of probation.
After sentencing the family of the Client hired the Law Office of Robert David Malove. We gathered the Trial and Appellate Attorney files, reviewed them, and interviewed the Client. After our review was completed, I filed a two ground Rule 3.850 motion. The Rule 3.850 motion was before a new judge and after reviewing the motion the new judge agreed that the previous judge’s conduct was inexcusable and ruled that trial counsel was ineffective for failing to move to disqualify the judge and object to the previous judge considering unsubstantiated post charged conduct prior to imposing sentence. The new judge vacated the 15-year prison sentence and granted a new sentence hearing to our Client. Stay tuned!
Burglary Conviction Vacated After 3.850 Motion Granted - Client Re-Sentenced to Trespass Charge and Pending Probation Violation Set Aside
The client was invited to live with a friend and his family. After several months of living with the family, the friend that invited the client to live with him and his family left to go to California. The client continued to live in the home until one day the mother of his friend called the police and had him taken out of the home and given a trespass warning. The client came back to the home the very next day and he was arrested for burglary and trespassing.
The client retained private counsel and ultimately pled guilty to attempted burglary and was given 1-year in the county jail followed by 5-years of probation. After he was released from serving 1-year in the count jail the client was released and violated his probation. His family hired the Law Office of Robert Malove and we had no time to waste so we obtained his previous trial attorney’s file and went to work reviewing the case.
After reviewing the case file and speaking with the client we were shocked to see the trial attorney file had all the documentation to show the client could never have legally committed a burglary. We filed a Rule 3.850 motion and an evidentiary hearing was set before the VOP hearing. Prior to the evidentiary hearing we had a conversation with the assistant state attorney about the claims we filed in the Rule 3.850 motion. During our conversation the assistant state attorney agreed the client could not have committed a burglary and we agreed to turn the evidentiary hearing into a re-sentencing hearing. The client’s burglary conviction was vacated! The client entered a plea to trespassing and was emergency released and the VOP hearing was deleted from the calendar as he was no longer on probation because of our hard work and his 3.850 motion being granted.
Our review of the case showed the client did not enter the property with the intent to commit a crime and therefore the State could never have legally proven he committed a burglary. Our client was facing up to 5-years in prison for the violation of probation because of a plea agreement he never should have entered in to. Trial counsel was ineffective for failing to advise the defendant that he had a defense to the burglary charge prior to him entering into a plea. The Law Office of Robert David Malove prevailed again!
Original Verdict Did Not Make a Specific Finding of Penetration in Sexual Battery Case. Rule 3.850 Motion Filed, State Concedes Error and Sentence is Slashed
The client was charged with three counts of sexual battery in violation of Florida Statute 794.011(5). The client pled not guilty. The case proceeded to trial. The client was found guilty of count one, not guilty of count two and guilty of battery, a lesser-included offense in count three. Notably, the jury verdict did not contain a special interrogatory on count one to indicate whether penetration occurred. Nevertheless, a scoresheet was prepared and the client scored out to a lowest permissible sentence of 94.65 months. The judge imposed a sentence of 120-months followed by 5-years of probation.
The client’s family retained The Law Office of Robert Malove. We obtained the client’s trial and appellate attorney files, as well as a copy of the State Attorney file. After reviewing all of the information we filed a Rule 3.850 motion in which we argued that the assessment of victim injury points was improper because the jury did not make a specific finding of penetration. The trial court ordered the State to file a response. The State filed a response and conceded error as to ground three of the client’s Rule 3.850 motion.
Based upon the concession of error the State agreed that the Client should be resentenced based upon our argument. When the erroneously included victim injury points were removed from our client’s scoresheet, he only scored to 64.5 months in prison. The client was re-sentenced to 64.5 months and his sentence was cut almost in half! The client’s sentence was reduced by almost 5-years!
Motion to Suppress Illegal Police Search Leads to Misdemeanor Marijuana Possession Charges Being Dismissed
Our office was retained on a case involving misdemeanor possession of marijuana. Although it is only a misdemeanor, there are serious consequences if one if adjudicated of this offense such as a driver’s license suspension for six months. As soon as our office reviewed the police report, we were able to determine that the police illegally searched our client. After the client was formally charged by information for the crime, the attorneys at our office drew up a motion to suppress the illegal search and filed it immediately.
After the motion was filed, we emailed the assigned prosecutor on the case the motion. At first the prosecutor would not agree to dismiss the case even though the state had no contradictory evidence to suggest that the motion would be denied by the judge. If we successfully argued the motion in front of the judge, the case would ultimately be dismissed if the motion was granted.
We responded to the assistant state attorney asking why he would not agree to concede the motion. In response he stated he spoke to a supervisor and will agree to concede the motion resulting in the charges being dismissed against our client.
Case Reversed and Remanded for New Trial on Second-Degree Murder Charge - State Dismisses the Charge, Client Released
The client was charged with first degree murder and proceeded to trial. A jury found him guilty of second-degree murder and the judge sentenced him to 40-years in prison. After having his conviction and sentence vacated, the case was remanded back for a new trial.
The client hired my firm, The Law Office of Robert David Malove. I filed our notice of appearance as attorney of record, obtained the case file and discovery. After reviewing the file and discovery, including an order from the appellate court that suppressed the traffic stop of the client, we had several conversations with the State and ultimately convinced the prosecutor he could not prevail. The State nolle prossed (dismissed) the case and our client was forever discharged from facing a second-degree murder charge.
Firearm Prison Sentence Slashed in Half Due to Ineffective Assistance of Counsel
The client was charged with possession of a firearm after having been adjudicated delinquent in violation of §790.23(1)(b) Fla. Stat. The state offered the client a plea of 18-months which he rejected. The state placed this offer on the record and the judge advised the client that under the Criminal Punishment Code the lowest permissible sentence the court could impose, absent a downward departure was 33.15 months in prison. The court asked the client if he wanted to speak with attorney any further. Counsel advised the court they spoke in detail and they want to reject the 18-month offer. Counsel advised the court that the client wanted to enter an open plea and proceed on a motion for downward departure.
During the hearing on the motion for downward departure trial counsel called two witnesses, the client’s sister and a doctor that conducted a forensic psychological evaluation. During the doctor’s testimony the court heard testimony that the client advised the doctor that “on the day of the instant offense, the client indicated he took his firearm for protection. He noted always having his gun on him due to being scared for his life, being scared everywhere he goes.”
After hearing this testimony, the trial court denied the motion for downward departure and noted that it was very concerned by the testimony of the doctor which confirmed the client was carrying and sleeping with firearms while suffering from mental disorders. The trial court then sentenced the client to 60-months in prison.
The client hired The Law Offices of Robert David Malove. We went to work and reviewed the case file. After reviewing the entire file, we filed a Rule 3.850 motion. Upon receiving the 3.850 motion, the State stipulated that trial counsel acted contrary to his client’s interests during the motion for downward departure hearing.
The trial court found that trial counsel was ineffective for introducing the doctor’s testimony that was detrimental to the motion for downward departure, and in fact, warranted a more severe sentence than the lowest permissible sentence of 33.15 months.
As a result of our work, the client was re-sentenced to 33.15 months down from 60-months in prison! The client was able to save 2-years and 3-months of his life behind bars due to The Law Office of Robert David Malove’s experience as a post-conviction attorney.
Trial Counsel Deemed Ineffective for Letting Defendant Enter a Plea to a Crime He Didn't Commit
The client was represented by a well-known law firm from Miami-Dade County. He was charged with committing three counts of sexual battery under Statute 794.011(4)(a). The client entered into a negotiated plea and pled guilty to all three-counts as charged. He was sentenced to 6-years in prison followed by 4-years of probation. After the client took his plea and went to prison, his family retained The Law Office of Robert David Malove. We obtained his entire case file and started our review of the case.
After reviewing the case file and doing our own investigation we found several serious errors of ineffective assistance of trial counsel. First, the client committed sexual battery on a person over 18-years of age, however, he was charged and pled to committing sexual battery on a person under 18-years of age. This was a significant error as sexual battery of a person under 18-years of age is a life felony, punishable by a maximum of up to life in prison. Whereas sexual battery of a person 18-years or older is a first-degree felony punishable by up to 30-years. Additionally, we found that in another count the client entered a plea of guilty to sexual battery which he did not commit. This count was based upon a false allegation that our investigation showed without a doubt the client could not have committed.
We filed our Rule 3.850 motion and after the trial court ordered the State to file a response, we contacted the Assistant State Attorney and spoke with him about our claims. After hearing our side of the claims, the ASA agreed the client could not have committed one of the sexual battery counts and agreed to vacate that conviction in its entirety. The ASA also agreed that trial counsel should not have let his client enter a plea to a life felony, when he only committed a first-degree felony. The client’s convictions and sentences to the erroneous life felonies were vacated and he was re-sentenced on the remaining two counts to the proper charges which were only first-degree felonies.
While this result did not reduce the client’s sentence in prison, it did vacate one of his three convictions, and most importantly corrected two erroneous convictions to a lesser degree felony. Had the convictions remained life felonies and the client violated his probation in the future he would have been subject to two life sentences in prison.
Rule 3.800(A) Motion Granted Resulting in Sentence Being Reduced Due to Error as a Result of Double Jeopardy
The client was represented by private counsel on eight different cases. The charges were burglary with an assault or battery, attempted robbery, grand theft, robbery, burglary, home invasion robbery, and robbery by sudden snatching. Ultimately the client entered into a negotiated plea bargain and was sentenced to 13-years in prison.
After serving four-years of his sentence the client’s family hired us to review his case and we went to work. After reviewing his case file, we filed a motion to correct an illegal sentence, known as a Rule 3.800(a) motion. In our motion we argued that the client unlawfully pled to crimes that violated the Double Jeopardy Clause of the Constitution and as a result of him entering a plea to the lowest permissible sentence, the scoresheet error required our client to be re-sentenced.
We pointed out that the client’s scoresheet showed the primary offense was home invasion robbery, and the first additional offense was burglary with a battery. However, because both of these offenses were committed during one criminal episode, double jeopardy prohibited a conviction for burglary with a battery because it was subsumed within the primary offense of home invasion robbery. We then pointed attached a corrected scoresheet as an exhibit which showed that without the points for the burglary with a battery being included on his scoresheet, our client only scored out to 125.1 months (10 years and five months) in prison.
After reviewing the motion, the trial court and the State agreed the Defendant’s scoresheet contained an error, and because he was essentially sentenced to the lowest permissible sentence his sentence must be vacated and a re-sentencing hearing was ordered. At the resentencing hearing we were able to have the client re-sentenced to 9-years, 9 months and 5 days in prison. The Clients sentence was reduced by 39-months!
Order Granting Defendant Rule 3.850 Motion & Vacating Sentence
The client violated his probation and was arrested. He was represented by private counsel. He denied the allegations in the affidavit of violation of probation and proceeded to a violation of probation hearing. After the hearing the trial court found the client willfully and substantially violated his probation and sentenced him to 20-years in prison.
The client’s wife hired The Law Office of Robert Malove after the client filed a pro-se rule 3.850 motion, a pro-se amended 3.850 motion, and a pro-se supplemental 3.850 motion. After obtaining the client’s entire case file, reviewing all the transcripts, and all his pro-se motions, we determined that the client overlooked and failed to raise his only meritorious claim in any of his pro-se motions. A review of the case file showed that our clients trial attorney attempted to inform the trial court before the VOP hearing that the State offered a plea of 10-years and he never had a chance to advise the client about this offer. The State, however, advised the trial court that the plea was no longer on the table and that trial counsel was told that the offer would be revoked if the State had to prepare for the VOP hearing and subpoena all of the witnesses.
Upon learning this, we filed a third amended Rule 3.850 alleging trial counsel was ineffective for failing to advise the client about the 10-year plea offer. The trial court granted us an evidentiary hearing and at the conclusion of the evidentiary hearing the trial court made a finding that trial counsel was ineffective for failing to advise the client about the 10-year plea offer and re-sentenced the client to 10-years in prison.
It was a very emotional moment when the judge re-sentenced our client and reduced his sentence from 20-years to 10-years.
Trial Counsel Ineffective for Misadvising Defendant He Would Not Be Deported
September 30, 2120 (Jacksonville, FL) - G.M was charged with lewd and lascivious conduct and as a result hired private counsel to represent him for his criminal case. Prior to trial the State had extended an offer to reduce the offense to felony battery if G.M. accepted a plea of 5-years in prison. When G.M. was advised of this plea offer by trial counsel, he asked his attorney if by accepting the State"s offer would he be subject him to deportation. Counsel advised him to retain an immigration attorney.
After retaining an immigration attorney, G.M.’s trial attorney consulted with the immigration attorney and advised G.M. that entering a plea to felony battery would not subject G.M. to deportation. Based upon trial counsel’s advice G.M. accepted the plea and was sentenced to 5-years in prison. While serving his prison sentence, G.M. was notified by ICE that as a result of him entering a plea to felony battery deportation proceedings were being initiated.
The Law Offices of Robert David Malove was retained and a Rule 3.850 motion asking to vacate the sentence was filed alleging trial counsel was ineffective for misadvising G.M. that he would not be subject to deportation for accepting a plea that resulted in a conviction for felony battery. The trial court set the matter for an evidentiary hearing. Prior to the hearing attorney Malove spoke to the assistant state attorney and provided him with copies of text messages proving that trial counsel advised G.M’s wife numerous times that G.M. would not be deported for accepting a plea to felony battery. We also provided a letter from the immigration attorney that was emailed to the trial attorney informing him that a plea to felony battery would result in G.M. being subject to deportation, contrary to what G.M. was advised.
As a result of our hard work and attention to detail, the Assistant State Attorney agreed that based upon the text messages and email from the immigration attorney that trial counsel was ineffective. I convinced the State to vacate the plea and allow G.M to enter a new plea to a charge that would not subject him to deportation. Ultimately, the evidentiary hearing turned into a motion to vacate the plea hearing which was granted and G.M. was allowed to plea to an offense that did not subject him to deportation.
G.M’s ICE hold was immediately terminated and he was released to be back with his family.
State Concedes Error. Motion to Correct Illegal Sentence Granted. Drug Offender Probation Vacated
J.G. was charged with DUI manslaughter and similar related offense. She hired private counsel. Ultimately, J.G. entered a plea bargain and was sentenced to prison followed by a term of drug offender probation.
J.G. contacted the Law Office of Robert David Malove and wanted her case to be reviewed to see if there were any clams that could be raised to attack her judgment and sentence. After a review of the file attorney Robert David Malove, a post-conviction specialist, noticed that J.G. was illegally sentenced to drug offender probation.
A Rule 3.800 (a) motion was filed and the motion argued that drug offender conditions of probation were restricted to those offenses enumerated in the drug offender probation statute. See, § 948.034, Fla. Stat. (2008). Neither of the crimes for which J.G. was charged and convicted are eligible for placement on drug offender probation.
The judge ordered the State to respond in 60-days and to show cause why the motion should not be granted. The Assistant State Attorney called the Law Offices of Robert David Malove and advised they would be conceding that an error occurred and agreeing that the drug offender probation must be stricken.
The trial court entered an order granting the Rule 3800 (a) motion and within the order the trial court stated that the placing of a person on probation with drug offender conditions for an offense not enumerated under § 948.034 amounts to an illegal sentence which is remediable pursuant to Rule 3.800(a). See, Reynolds v. State, 186 So. 3d 1120 (Fla. 5 th DCA 2016) (imposition of “standard probation” with drug offender probation conditions constitutes illegal sentence); Epperson v. State, 955 So. 2d 642 (Fla. 4th DCA 2007) (“The imposition of drug offender probation and related conditions, when the trial court lacks authority to do so, is cognizable in a rule 3.800(a) motion”); Parker v. State, 839 So. 2d 736 (Fla. 3d DCA 2003). The error is apparent from the face of the record, the motion is granted and the drug offender probation condition was stricken.
State Attorney Agrees To 3.850 Motion & Client's Sentence is Reduced
PANAMA CITY, FL (March 8, 2019) I filed a Second Amended Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850. The motion argued three grounds. On two of the three grounds, the judge granted an evidentiary hearing. However, before the evidentiary hearing ever happened, we entered into a stipulation with the State Attorney's Office and my client's term of incarceration was reduced.