Have you or a loved been convicted of a crime? Worried about how that conviction will effect your life? Are you facing a prison sentence as a result of your conviction? This part of our website will discuss types of Florida criminal appeals that may be available to you.
The following list, while NOT conclusive, contains some examples of appellate issues that may exist in your case, even if you are not aware of their existence! Sometimes good appellate issues are obvious to anyone who is familiar with the case. In other instances, good appellate issues lie deep in the details and are only apparent to someone with a trained eye, like an appellate lawyer. To determine if your case presents any of these or other opportunities, it is necessary to conduct a full case analysis and initial consultation.
- Was the defendant represented by a competent lawyer?
- Did the judge properly instruct the jury during trial?
- Was the jury exposed to improper, outside influences?
- Did the judge incorrectly deny a motion for mistrial or directed verdict?
- Did the judge improperly limit the defense in the presentation of its case?
- Did the judge incorrectly deny defense objections?
- Did the judge show bias in favor of the prosecution before the jury?
- Did the judge show bias against the defense before the jury?
- Did the judge improperly admit evidence that should have been excluded?
- Did the prosecution fail to establish a “prima facie case?”
- Did the judge allow the prosecution to admit opinion testimony without a proper foundation?
- Did the judge improperly allow the prosecutor to admit evidence of prior bad acts or character evidence?
- Did the prosecutor make any comments or statements that were improper?
- Did the prosecutor commit any act of misconduct?
- Did the judge allow the prosecutor to admit evidence or testimony that was not disclosed prior to trial?
- Did the judge improperly allow the prosecutor to amend the charges or the information/indictment after the jury was sworn?
- Did the judge improperly admit or exclude a particular juror?
- Did any juror commit an act of misconduct?
- Did the jury separate at any time without permission from the judge?
- Did the scoresheet include points that should not have been included?
- Was the defendant sentenced to an illegal sentence?
- Did the court properly score victim injury points?
- Was there a sentencing error that requires correction?
- Was the defendant denied credit for all time served?
- Did the defense lawyer conduct an adequate case investigation?
- Did the defense lawyer depose all necessary witnesses?
- Did the defense lawyer make use of all necessary experts?
- Did the judge improperly deny a defense motion to compel?
- Did the prosecutor fail to disclose all discoverable evidence?
- Did the prosecutor fail to disclose any known evidence that negates guilt?
- Did the prosecutor fail to list all witnesses he or she intended to call at trial?
- Did the judge apply the wrong legal standard in denying a defense motion?
- Was the defendant improperly denied bail or was bail set so high that the defendant could not afford it?
- Did the judge abuse his or her discretion in denying a defense motion?
- Did the defense lawyer file all applicable motions to suppress and/or dismiss?
- Did the defense lawyer properly identify evidence that was more “prejudicial than probative” for exclusion prior to trial?
- Did the defense lawyer file any relevant motions to compel discovery prior to trial?
If you think any of the above issues are present in your case, you may have good grounds for an appeal.
What are the different types of appeals?
The term “appeal” is often used by non-lawyers to generally describe any form of relief that is sought after a defendant’s case has been resolved, whether by jury trial or plea. Generally speaking, there are four main categories of “appeals.” They are as follows:
- Direct Appeals
- Post-Trial Motions
- Post-Conviction Relief
- Direct Appeals
According to Rule 9.140, Florida Rules of Criminal Procedure, a criminal defendant may appeal the following:
- A final judgment adjudicating guilt.
- A final order withholding adjudication after a finding of guilt.
- An order granting probation or community control, or both, whether or not guilt has been adjudicated.
- Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying any of the following:
- Rule 3.800(a) Motion to Correct Sentence.
- Rule 3.850 Motion to Vacate, Set Aside, or Correct Sentence.
- Rule 3.853 Motion for Post-Conviction DNA Testing.
- An unlawful or illegal sentence.
- A sentence, if the appeal is required or permitted by general law.
- As otherwise provided by general law.
Generally speaking, a criminal defendant may NOT appeal from a guilty or no-contest plea UNLESS he or she preserved his or her right to appeal. However, a defendant may appeal a guilty or no-contest plea under the following specific conditions:
- When the trial court lacked subject matter jurisdiction.
- If there is a violation of the plea agreement, if preserved by a motion to withdraw plea.
- An involuntary plea, if preserved by a motion to withdraw plea.
- Any sentencing errors, if preserved.
- As otherwise provided by law.
- Post-Trial Motions
The following is a list of motions that may be filed after a jury returns a verdict of guilty. However, it is EXTREMELY important to note that these motions MUST be filed within 10 days of the verdict or else relief is waived.
- Rule 3.580: Motion for New Trial
- Rule 3.575: Motion to Interview Jurors
- Rule 3.160: Motion for Arrest of Judgment
- Rule 3.620: Motion for Conviction of Lesser Offense
Motion for New Trial
According to Rule 3.600(a), Florida Rules of Criminal Procedure, a trial court must grant a motion for new trial if any of the following conditions are established:
- The jurors decided their verdict by lot.
- The verdict is contrary to law or the weight of the evidence.
- New and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.
Under Rule 3.600(b), Florida Rules of Criminal Procedure, a trial court must grant a motion for new trial if any of the following conditions are established AND the “substantial rights of the defendant were prejudiced thereby:”
- The defendant was not present at any proceeding where his or her presence is required by the Florida Rules of Criminal Procedure.
- The jury received any evidence out of court, other than that resulting from an authorized view of the premises.
- The jurors, after retiring to deliberate upon the verdict, separated without permission from the judge.
- Any juror was guilty of misconduct.
- The prosecuting attorney was guilty of misconduct.
- The court erred in the decision of any matter of law arising during the course of the trial.
- The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant.
- For any other cause not due to the defendant’s own fault, the defendant did not receive a fair and impartial trial.
Motion to Interview Jurors
According to Rule 3.575, Florida Rules of Criminal Procedure, a party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors. The motion must state the name of any juror to be interviewed and the reasons why the defendant has reason to believe that the verdict may be subject to challenge. After notice and hearing, the trial judge, upon a finding that the verdict may be subject to challenge, shall enter an order permitting the interview, and setting therein a time and a place for the interview of the juror or jurors, which shall be conducted in the presence of the court and the parties. If no reason is found to believe that the verdict may be subject to challenge, the court shall enter its order denying permission to interview.
Motion for Arrest of Judgment
According to Rule 3.160, Florida Rules of Criminal Procedure, the court shall grant a motion in arrest of judgment only on 1 or more of the following grounds:
- The indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction.
- The court is without jurisdiction of the cause.
- The verdict is so uncertain that it does not appear that the jurors intended to convict the defendant of an offense of which the defendant could be convicted under the indictment or information under which the defendant was tried.
- The defendant was convicted of an offense for which the defendant could not be convicted under the indictment or information under which the defendant was tried.
Motion for Conviction of Lesser Offense
According to Rule 3.620, Florida Rules of Criminal Procedure, “when the offense is divided into degrees or necessarily includes lesser offenses and the court, on a motion for new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.”
- Post-Conviction Relief
With the exception of death penalty cases, there are two types of motions a criminal defendant may file to obtain relief after having been convicted at trial. They are:
- Rule 3.850: Motion to Vacate, Set Aside, or Correct Sentence
- Rule 3.853: Motion for Post-Conviction DNA Testing
Motion to Vacate, Set Aside, or Correct Sentence
This type of motion is most commonly for its use in attacking a conviction when a defendant was represented by an ineffective lawyer. However, attacking ineffective assistance of counsel is not the only use of a motion under this rule. Essentially, the purpose of this rule is to request that a plea or conviction be vacated, set aside, or a sentence corrected because the defendant’s constitutional rights were violated.
Pursuant to Rule 3.850, Florida Rules of Criminal Procedure, The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or no-contest:
- The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
- The court did not have jurisdiction to enter the judgment.
- The court did not have jurisdiction to impose the sentence.
- The sentence exceeded the maximum authorized by law.
- The plea was involuntary.
- The judgment or sentence is otherwise subject to collateral attack.
With the exception of motions to correct sentences that exceed the limitations of time delineated by statute, Rule 3.850 motions MUST be filed within 2 years after judgment and sentence become final. The only exception to this rule is a capital case, where the time limit is 1 year from the time judgment and sentence become final.
HOWEVER, there are three exceptions to this time limitation. They are as follows:
- The facts on which the claim is predicated were unknown to the defendant or the defendant’s attorney and could not have been ascertained by the exercise of due diligence.
- The fundamental constitutional right asserted was not established within the period provided for in the Florida Rules of Criminal Procedure and has been held to apply retroactively.
- The defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.
- As you can see, types of Florida criminal appeals vary greatly. The specific type of Florida appeal that is right in your case will vary based on the facts, the type of charge, what happened at trial, and a host of other very specific considerations.