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The Florida Rules of Criminal Procedure provide a way for the person convicted of a crime to attempt to vacate the conviction through a Rule 3.850 Motion or a 3.800 Motion. These post-conviction motions are filed after the direct appeal.
Rule 3.850 Motions are particularly common in complicated cases that resulted in a long prison term when the underlying evidence is weak and the trial attorney was ineffective.
Post-conviction motions are complicated. Very few of these motions will result in any relief. Nevertheless, this process is often a person's last opportunity to seek to relief from a judgment and sentence entered by the trial court.
For this reason, it is very important to hire an experienced criminal defense attorney conduct a review of the case by looking at the state's file, the clerk's file and the trial attorney's file to determine what issues can be used to seek relief on a post-conviction matter.
If the client is in custody, then we travel to their location to sit down and talk with them in a confidential setting as part of the review of the case.
Contact the Sammis Law Firm to discuss your case and the possibility of obtaining post-conviction relief from your sentence and judgment. The attorneys at the Sammis Law Firm, are ready to perform a post-conviction review from a judgment and sentence in Hillsborough County, Pinellas County, Polk County, Pasco County, Hernando County or any of the surrounding areas throughout central Florida.
Contact us today to speak directly with an experienced criminal defense attorney to investigate the merits of filing and litigating a post-conviction motion. Call 813-250-0500.
In Hillsborough County, FL, all post-conviction motions are scheduled and heard in Circuit Criminal Division "J" in Tampa, FL. The different types of post-conviction motions heard at the courthouse in Tampa include:
If relief is denied after the post-conviction motion is filed and litigated, then the next step is filing an appeal to the Second District Court of Appeals.
Some motions filed after a plea was entered in Tampa and Hillsborough County, FL, are disposed of in the division in which the case was last pending. These motions include any matter that reopens or addressed a closed case including:
The typical process following a plea or guilty verdict after trial includes the following:
A Rule 3.850 motion must generally be filed within two (2) years of the conviction or mandate, unless one of the following exceptions apply:
At the Sammis Law Firm, P.A., the first service performed for the client is a Post-Conviction Review. The Post-Conviction Review requires investigating all of the issues surrounding the verdict or plea to determine if there is a viable post-conviction claim.
We will discuss the case in great detail with the defendant, order and review the trial attorney's file, order and review the clerk's file, order and review the prosecutor's file (through a public records request) talk with any potentially favorable witnesses that were not called to testify, discuss the case with the trial counsel, and perform other types of investigations suited to the review. If a viable post-conviction claim exists, then litigation can begin.
The first step in that litigation is filing the post-conviction motion on the defendant's behalf.
Florida Rule of Criminal Procedure 3.850 provides a mechanism in which person who has been convicted of a criminal offense can challenge that conviction and request that the conviction be set aside, vacated, or corrected. A Rule 3.850 motion is sometimes called the “Rule 3 Motion.” When successful, a post-conviction motion can cause a sentence to be set aside, leaving the defendant in the position that he was in immediately before he entered a plea or went to trial. Typically, that means the defendant is in a position to negotiate a better plea agreement to resolve the case before trial or to take the case to trial.
It is important to remember that a vacated plea does not necessarily mean that the defendant will obtain a better plea bargain. After the plea is vacated, especially when it is alleged that the plea was coerced, the prosecutor may say, "Well, you wanted a trial so we are going to give you a trial without the benefit of any pre-trial plea bargains."
If the defendant then goes to trial and is convicted the second time, it is possible that the sentence after trial is greater than the original sentence. One factor that often works against the prosecutor is the passage of time. Witnesses can be harder to find. Memories fade. Physical evidence can be lost by the prosecutor's office.
An experienced Post-Conviction Attorney can discuss all of these factors with you as part of the review. There are pros and cons to filing and litigating the motion that must be considered. The attorney can also keep you informed as the case moves forward if the motion is filed and litigated. The grounds for the motion can include the following:
The most common post-conviction motion is a motion that alleges that the attorney that represented the defendant during his plea or trial was ineffective, or performed his job so poorly that it undermined the functioning of the process so that the trial or plea can not be relied upon. Post-conviction motions can also be filed to withdraw pleas that were entered without the representation of an attorney.
The most common post-conviction motion filed is an allegation of ineffective assistance of counsel. These claims can encompass every aspect of the attorney’s representation of the client, both inside and outside of the courtroom. The claims related to ineffective assistance that occurred outside of the courtroom include the attorney’s investigation of the case, comments made to the client, interviews with witnesses, research into legal issues involved in the case, and advice given to the client.
A viable claim may exist when the trial attorney that represented the client made a mistake at trial or failed to perform some act that impact the outcome of the case. For instance, if the attorney failed to file and litigate a motion to suppress evidence when such a motion had merit that claim might lead to post-conviction relief. A viable claim may also exist if trial counsel failed to call a witness that could have offered favorable testimony, and no strategy existed to support that failure.
In Alcorn v. State, 121 So. 3d 419 (Fla. 2013) [38 Fla. L. Weekly S397b], the Florida Supreme Court addressed the applicable standard for evaluating claims of ineffective assistance of counsel in the context of plea offers. The court adopted a four-part test defendants must meet to establish prejudice in the context of rejected plea offers. Under the Alcorn test, to show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, of the following:
Alcorn, 121 So. 3d at 422.
Additionally, if the defendant can show that his plea was coerced, a viable claim would exist. An allegation that the plea was coerced must show something more than the defendant entered the plea because he had to make a decision quickly or because he felt pressured to do so when he was in fear of a harsher sentence after trial if convicted.
A coerced plea points to some improper influence such as a threat to prosecute a close friend or family member of the defendant when that close friend or family member was actually innocent of the charge and was being threatened with prosecution merely to coerce a plea.
A viable claim for ineffective assistance of counsel can exist if the trial attorney convinced the defendant to enter a plea based on incorrect statements of the law or affirmative misrepresentation of the law. For instance, if the trial attorney told the defendant that he could receive a 30-year sentence after trial when the offense charged only carried a maximum sentence of 15 years in prison after a conviction, then that misadvice might result in post-conviction relief.
Additionally, a viable claim may exist if it can be shown that the defendant was insane at the time of the plea or under the influence of medication to the extent that he was unable to make an informed decision or understand the consequences of the plea.
The Supreme Court of the United States has set out the standard for post-conviction relief when the prosecutor fails to disclose exculpatory evidence. In Kyles v. Whitley, 514 U.S. 419 (1995), the rule was announced that the conviction would not stand when the prosecutor knowingly failed to tell the defense about exculpatory evidence (evidence that was favorable to the defense), and that evidence created a reasonable probability that a different result would have resulted at trial had the evidence been properly disclosed to the defense. See also Strickler v. Greene, 527 U.S. 263 (1999).
For instance in Banks v. Dretke, 540 U.S. 668 (2004), relief was granted because of the prosecutor's failure to disclose favorable evidence when the state failed to disclose the fact that a prosecution witness was also working as a confidential informant for the state. In fact, in the Banks case, the prosecution did more than just fail to disclose, in that case, the prosecution also denied that the witness was working as an informant.
In order to present a viable Rule 3.850 claim under a theory that the prosecutor offered testimony that the prosecutor knew was false, it must be shown that the prosecutor had "actual knowledge" that the witnesses offered perjured or false testimony. Proving such a claim is extremely difficult because rarely will the witness or prosecutor admit to such a violation. Even in cases in which the witness will admit that he told the prosecutor of the intentionally false testimony, the prosecutor may deny such a claim, creating a credibility issue for the court to resolve.
Even when such a showing is made, to prevail on the claim it also must be shown that the perjured testimony was material to an issue decided by the jury. A claim of intentionally false testimony may also support an independent claim of newly discovered evidence as discussed above.
Newly Discovered Evidence in Florida
A viable claim for newly discovered evidence can exist when the defendant can show the following:
When the court sentences the defendant to an illegal sentence, the proper avenue of attack is to file a Rule 3.800 Motion to correct the illegal sentence. The illegality must be shown based on the face of the record. The Florida Legislature has set certain statutory maximum requirement for each criminal law violation. When the trial court sentences the defendant to a term that exceeds that statutory maximum, the sentence is illegal.
Relief under a Rule 3.800 motion can be granted after the imposition of the sentence and is not limited to the same 2-year rule imposed in Rule 3.850 Motions. In fact, subsection (a) of Rule 3.800 allows the judge at the trial level to correct the illegal sentence “at any time,” including while the direct criminal appeal is pending. In Florida, Rule 3.800 motions are most commonly successful based on the following types of errors:
In Daniels v, State, 595 So. 2d 952 (Fla. 1992) Supreme Court of the State of Florida announced the rule that when the court sentences a defendant for two or more crimes that resulted from the same criminal episode, that sentence could not then be enhanced under the habitual violent felony offender statute when the sentences for each count were run concurrently.
In Hale v. State, 630 So. 2d 521 (Fla. 1993) the Supreme Court for the State of Florida expanded the rule announced in Daniels to also apply to enhancement under the habitual offender statute for sentences that were run consecutive to one another because the State Legislature’s intention was to increase the punishment for these offenses only to the extent that the maximum sentence for each offense is increased. In other words, once the habitual offender sentencing enhancement procedure is use to sentence the defendant beyond the statutory maximum sentence, those sentences can not then be stacked or run consecutive to one another to enhance the total sentence even more.
For the purposes of the FY 2014-15 Statistical Reference Guide, the Florida Office of the State Courts Administrator defines the term “Post Conviction Relief Motions” to mean “a post conviction relief motion is a motion to vacate, set aside, or correct a sentence pursuant to rule 3.850, Florida Rules of Criminal Procedure.”
According to the statistics kept in the statistical reference guide for FY 2014-15, the Florida Office of State Court Administrators found that the following total number of Circuit Criminal Special Proceedings were filed in the Thirteenth Judicial Circuit in and for Hillsborough County:
Justice Denied - The Magazine For The Wrongly Convicted. Published monthly, this magazine and website is dedicated to bringing you the stories of innocent people who have been wrongfully convicted, and their fight for justice in the legal system.
The Innocence Project - National litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing.
Florida Rules of Criminal Procedures for Post-Conviction Motions - Visit the website of the Florida Bar to find sample 3.850 forms for post-conviction relief under Rule 3.800 and Rule 3.850 for ineffective assistance of counsel. Also find motions to withdraw a coerced plea in Florida. For the purposes of the FY 2014-15 Statistical Reference Guide, the Florida Office of the State Courts Administrator defines the term “Post Conviction Relief Motions” to mean “a post conviction relief motion is a motion to vacate, set aside, or correct a sentence pursuant to rule 3.850, Florida Rules of Criminal Procedure.”
The attorneys at the Sammis Law Firm, P.A., are ready to start the process of a post-conviction review for a case in Hillsborough County, Polk County, Pasco County, Pinellas County, Polk County, Hernando County, or any of the surrounding areas throughout Tampa Bay.
We also represent clients in direct criminal appeals and criminal restitution hearings after a conviction. We can begin your post-conviction review. We can also file and litigate a Rule 3.800 or 3.850 if warranted under the facts of your particular case. If you need a post-conviction relief attorney in Florida, then call an attorney at the Sammis Law Firm.
It is important to realize that if post-conviction relief is denied, the next step is pursuing and appeal to a higher court. After that, the only other step is seeking clemency. For many, if the request for post-conviction relief is denied, there will be no relief. Call 813-250-0500 to discuss your case.
This article was last updated on Friday, May 5, 2018.
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Sammis Law Firm 1005 N. Marion St. Tampa, FL 33602
Meet Our Attorneys
Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
Leslie M. SammisFocused on DUI Defense for more than 15 years. Former Assistant Public Defender...Read more
Matthew A. MenendezAs a former assistant public defender, Matthew is experienced in trial advocacy and motion...Read more
Amanda BrunsonWith over 25 jury trials and 40 bench trials, Amanda is experienced in...Read more
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Jennifer PondAs a paralegal, Jennifer assists the attorneys with the initial intake, filing motions...Read more
Danielle WynimkoAs a Florida Registered Paralegal, Danielle has fulfilled the requirements set forth by...Read more
Tara ColeWith more than fourteen years experience as a paralegal / legal assistant, Tara Cole is...Read more