Most people believe that an appeal is the last resort for anyone who has been convicted of a crime. While it is true that most cases are concluded after the appeals court rules, there are potential options for relief afterward.

Under certain circumstances, a defendant in Florida who has been convicted of a crime and has had her conviction affirmed on appeal may file for Post-Conviction Relief. In Florida, post-conviction relief is governed by Florida Rule of Criminal Procedure 3.850. Such a post-conviction relief motion is typically entitled a “Motion to Vacate Sentence.”

This legal procedure has gained some notoriety in the news lately thanks to the “Serial” podcast involving a murder case in Baltimore, MD. As a result of that podcast and the resulting public outcry, questions were raised about the original trial and the actions of the defendant’s trial lawyer, and the case is currently in the midst of a post-conviction relief hearing.

Generally, there are two primary scenarios in which someone who is convicted can file a 3.850 motion:

Attorney Mistakes or Incompetence

Ineffective assistance of counsel is the most commonly used allegation. If that is the grounds for the Motion to Vacate Sentence, it must be filed within two years of the conviction becoming final. Simply put, the person who has been convicted is alleging that “but for” the ineffective assistance of his attorney, the outcome of the case would have been different. Ineffective assistance of counsel can take many forms, from failing to investigate and present a particular defense, failing to interview exculpatory witnesses, or not extending a plea offer to the client.

New Evidence That Could Have Changed the Case Outcome

These are just three examples, but many more exist and have been successfully asserted.
Newly discovered evidence is also a common basis for a Motion to Vacate Sentence. Quite often, DNA evidence will reveal that the person who has been convicted did not commit the crime. Sadly, reports of these wrongful convictions are reported in the news on a regular basis. Since DNA evidence may not have been invented at the time of the original trial, it is considered “newly discovered evidence which could not have been discovered at the time through the exercise of due diligence.” Most importantly, the two-year time limit for filing a Motion to Vacate Sentence does not apply to newly discovered evidence.

A second basis for newly discovered evidence claim is a witness recantation. That means that a material witness testified way back when that the defendant committed the crime, but now they are changing their testimony. There are a myriad of reasons why a witness would recant their statement years later, including fear of prosecution, threats of violence or receiving a benefit to testify falsely.

A Successful Post-Conviction Motion Doesn’t Always Mean the Case Will Be Dismissed

A common misconception about post-conviction motions is that if the motion is granted by the court, the case will be dismissed. In point of fact, that is not always the case. When the motion is granted based upon ineffective assistance of counsel, the case can usually be prosecuted again. Since there is a two-year time limit for filing that motion, witnesses are usually still available, evidence is still in the police property room, and the officers can still be located. If that is the case, then once the motion is granted, the accused goes back to “square one,” and the prosecution starts over again.

Contrastingly, when it comes to newly discovered evidence, particularly in very old cases, the witnesses are usually no longer available, or their memories have faded. Evidence may have been lost or destroyed, and police officers retire. In a great number of these type of cases, the prosecution is unable to prove the case, and the charges must be dismissed.

Call Experienced Post-Conviction Attorney for Advice on Your Case

This is just an overview of the process. There are several other grounds for filing a Motion to Vacate Sentence, which is beyond the scope of this summary. And there is a federal counterpart to the Florida law, which can be found at Title 28 United States Code §2254 and §2255. That United States law requires that a Motion to Vacate Sentence be filed within one year of the date when the conviction became final, creating a conflict between the Florida and federal laws. It takes an experienced criminal defense lawyer to properly advise you as to how to proceed when it comes to post-conviction motions, contact Robert Malove today!