Post conviction relief is governed by Florida Rules of Criminal Procedure 3.850 and 3.800. Rule 3.850 usually applies when there is ineffective assistance of counsel, however that is not the only instance when it applies. A Rule 3.850 motion must be filed within two years of the final judgment and sentence. Although there are some exceptions to the time limit, they are very narrow
In order to file a motion based on ineffective assistance of counsel, the defendant must prove that the attorney failed to render effective assistance, and that had effective assistance been offered, the outcome may have been different. Some common forms of ineffective assistance are failure to file proper pretrial motions, failure to convey a plea offer, failure to advise someone of the consequences of a plea, failure to investigate exculpatory witnesses or evidence, and failure to preserve the right to appeal. A common instance of ineffective assistance of counsel is when an attorney fails to advise a defendant that a plea could subject him to deportation if he isn’t a US citizen.
Without a legal education, one would not know where to look when considering whether an attorney was effective. A good criminal defense attorney will review all of the evidence, transcripts and motions in a case when determining whether the previous attorney was ineffective. In order for an attorney to be successful, he will need both knowledge of current law and courtroom experience.
Another appropriate time to file a Rule 3.850 motion is when a defendant did not enter into a valid plea agreement. A plea is not valid if the plea was based on a lawyer’s misrepresentations to the client, the plea was not voluntary, the plea was based on false promises, etc.
Rule 3.850 also applies to claims that there is new evidence. New evidence is evidence that could not have been discovered during the original proceedings. Not only must the evidence have been unobtainable during trial, it must also have the ability to result in a different outcome. Examples of new evidence are witness recantation, additional physical evidence like DNA or fingerprints, or the discovery of new witnesses that weren’t known during the original proceeding.
When hiring an attorney for post conviction relief, a client should feel comfortable in his or her choice of attorney. It is important for a client or a client’s relatives to meet with the attorney in order to address any of their questions or concerns. A good attorney will first analyze a case in order to determine whether an appropriate issue exists, before agreeing to draft a motion for a client.
After a motion is filed, the defendant must swear that the contents of the motion are true. If the claims in the motion are valid, the prosecutor will be required to respond in writing. The court will then dismiss the defendant’s motion, or require a hearing on the motion.
If the motion is successful, the case is not dismissed. The defendant is brought back to the position he would be in if there was no final judgment. Either the plea will be vacated, or the trial will take place again.