Were You Unjustly Convicted? Find Out If You Have Grounds for Post-Conviction Relief

What is Post-Conviction Relief?

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.

You Have Two Years To File For Post-Conviction Relief - but There Are Exceptions

The general rule is that you have two years to file most 3.850 motions in Florida. However, the two-year rule does not apply to motions filed to vacate a sentence that exceeds the limits allowed by law. If you are submitting your 3.850 motion because your sentence exceeds the legal limits, you may file your motion at any time.

For all other 3.850 motions, the court will not consider a motion filed more than two years after the judgment against you or your sentence becomes final unless:

There are new facts that are the basis for your motion and those facts were not known to you and could not have been reasonably known to you within two years of your final judgment or sentence. In this situation, your two years to file a 3.850 motion begins to run when you knew, or should have known, the new facts and not when your judgment or sentence became final.

A fundamental constitutional right was not established during the two-year period that you would generally have to file a motion but has since been established and determined to apply retroactively. Your motion must be filed within two years of the mandate that the constitutional right be applied retroactively.

You hired a lawyer to file your 3.850 motion, and your lawyer neglectfully failed to file your motion. If this happened to you, your motion must be filed within two years of your original two-year deadline.

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

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. 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.

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.

Hire the Right Lawyer to Represent You in a Post-Conviction Relief Motion

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.

Why Choose Us?

Criminal defense attorneys are a dime a dozen in the Fort Lauderdale area, and you get what you pay for. When your freedom is at risk, don’t trust your criminal case to just anyone. If you’re ready to get serious about protecting your rights, call The Law Offices of Robert David Malove. We offer highly skilled legal services that other defenders simply can’t match.

You can’t go wrong by contacting our firm and telling us about your situation. If we can help, we will!