Hallway in Jail or Prison, where you wait seeking post conviction relief by filing a motion to vacate, motion to correct sentence, motion to correct illegal sentence or writ of habeas corpus.


Just because you lost on direct appeal, it doesn’t mean that you ran out of ways to challenge your sentence. The criminal justice system offers a few options. Post Conviction Relief lets you both attack your conviction and the length of your sentence. Normally, a new lawyer looks at your case with a fresh set of eyes to check for issues.

Unlike direct appeals, these challenges begin at the trial court level. You file your Motion to Vacate, etc. for the trial judge to review. Sometimes, the judge can simply deny the motion. This happens when people file without following the rules. Also, the State of Florida might have to respond. It can attach the transcript and include evidence to defeat your claim. If you pass these steps, the judge should hold a hearing on your motion.

If you win the hearing, the judge may reverse your conviction and reopen your case. Then, you can fight again as if you never plead. Maybe the judge reverses your sentence and you get another chance at a friendlier outcome.

Rule 3.850 Motion to Vacate; Set Aside; Or Correct Sentence

Motions to Vacate – What You Can Challenge

Most commonly, people in Florida file Motions to Vacate under Rule 3.850. It’s commonly called Ineffective Assistance of Counsel because it lets you point out errors made by your prior counsel. You must prove deficient performance and prejudice from the mistake to get relief.

You can’t just file Motions to Vacate for any reason. Lawyers make lots of mistakes. Often, they don’t alter the outcome of the case. Therefore, the rules limit the matters serious enough to raise. Motions to Vacate challenge judgments and sentences which are involuntary, unconstitutional, beyond the court’s jurisdiction, over the maximum sentence or otherwise subject to collateral attack. Here are some examples.

First, if your lawyer fails to investigate a factual defense which leads to your plea, you can get a hearing. This is because a plea must be knowingly, intelligent and voluntary. If you knew you had a valid defense, you wouldn’t have pled guilty. Second, if your lawyer, without objecting, lets the prosecutor improperly admit evidence of a prior crime at trial, you will get a hearing. Surely, this lawyer was ineffective.

But Motions to Vacate assist with more than just Ineffective Assistance of Counsel. If you find newly discovered evidence that would probably produce a not guilty verdict, you can file this motion. Also, you can challenge an illegal sentence. Even if you agree to an illegal sentence, you can still file a motion to vacate under this rule.

Other Aspects of Motions to Vacate

These Motions contains lots of rule you must follow. Judges can deny your Motion if you don’t follow them. They must be sworn. If you lie, you commit perjury. If you don’t swear, the judge denies your motion without hearing. This Motion is not a second appeal. The rule prevents you from raising grounds that could have been raised at trial, or if properly preserved, on appeal. With few exceptions, you must file them within 2 years of the judgement and sentence becoming final.

If the record conclusively refutes your Motion, it’s over. If not, the judge orders the prosecutor to respond. Having reviewed the filings, the judge decides whether to hold a hearing on rule.

Just because you get a hearing, doesn’t mean you’ve won. This hearing requires more than a written allegation. The evidence must support your allegation. You must call witnesses and admit evidence because you have the the burden of persuasion. During Ineffective Assistance of Counsel claims, your lawyer typically testifies for or against you.

Rule 3.170 Motion to Withdraw Plea

Too often we confuse a plea with sentencing because so often, they happen at the same time. When the parties negotiate a sentence, the judge accepts a plea and then passes the agreed upon sentence. It’s very simple.

However, it often doesn’t work out that way. In complicated cases, judges take open pleas from people where they have no idea what sentence they will receive. The judges give their lawyers the chance to gather witnesses to testify on their behalf and present other evidence. But what if you plea and then regret it? Are you stuck?

The law gives you two chances to file a Motion to Withdraw Plea. If you try before sentencing, the judge may in its discretion, grant the Motion with good cause shown. Either the judge denies the Motion as insufficient or schedules it for hearing. This is the much easier standard to meet.

After sentencing, it becomes more complicated and the grounds for filing a Motion narrow. If you do not reserve the right to appeal a legally dispositive issue, you can only argue the judge lacks subject matter jurisdiction over you, the plea agreement was violated, your plea was involuntary, a preserved sentencing error or as otherwise provided by law. Additionally, you must file the Motion within 30 days after sentencing.

Rule 3.800 Correction, Reduction and Modification of Sentences

The Rule offers three ways to file a Motion to Correct Sentence. First, a judge can correct illegal sentences at any time, except during an appeal. Second, a judge can correct a sentencing error, like a scrivener’s error or credit for time served mistake, before or during appeal. Third, a judge may reduce or modify a legal sentence within 60 days of its imposition or end of an appeal.

Check out my blog post discussing a recent case where a judge corrected a sentencing error.

Federal Court Post Conviction Relief

Like in State court, Federal court allows you to argue Ineffective Assistance of Counsel, newly discovered evidence, sentencing errors and more. The process is similar too. They’re most commonly raised under statute 2255.

28 U.S.C. § 2255

A prisoner may file a 2255 Motion to Vacate, Set Aside or Correct the Sentence if the sentence violates the Constitution or U.S. law, the court lacked jurisdiction over the prisoner, the sentence exceeds the maximum or other ground for collateral attack exists. Similarly, the judge only holds a hearing if the prisoner is entitled to relief. Instead of 2 years, federal prisoners must file these within 1 year of finality. Moreover, they cannot file multiple motions without permission from the court of appeals.

Habeas Corpus

Federal law creates two types of Writs of Habeas Corpus to free people from jail. 28 U.S.C. § 2241 helps federal inmates. Both help state inmates. However, they limit the ability to file them. Basically, federal inmates may file this writ if they’re detained under U.S. authority, or they’re detained for a violation of federal law or order, they need to be brought to court to testify or attend trial, or they’re foreign citizens in certain situations. A state inmate may file under this statute if the state court has yet to sentence him.

Otherwise, a State inmate files under 28 U.S.C. § 2254. If Florida holds you in violation of the U.S. Constitution or U.S. law, you can file a Writ of Habeas Corpus in federal court. You can’t do this right away. You have to exhaust your state court remedies. This is a very complicated issue. You must follow through with an appeal and seek discretionary review by the Florida Supreme Court. You might have to file a post conviction motion in State court, appeal and again seek discretionary review by the Florida Supreme Court. This writ must be filed within 1 year of the conviction becoming final. Actual innocence claims may be filed beyond 1 year.

Rule 35

Within 14 days after the judge orally announces sentence, Federal Rule of Criminal Procedure 35 says the judge may correct a sentence that results from a mathematical, technical or other clear error. This provides a much shorter window to act than in State court. Also, the judge can reduce sentences for people who provided substantial assistance. This means helping law enforcement, often as a confidential informant or cooperating witness.

Compassionate Release

On rare occasions, both State and Federal courts release old or sick inmates. They call it Compassionate Release. This gives a small set of inmates the chance to be free without fighting the merits of their case.

Talk to an Experienced Florida Criminal Defense Attorney!

Post Conviction Relief isn’t the type of matter that every lawyer can properly handle. They’re very nuanced and require someone who can persuasively convey your point using the written word. Fortunately, Mr. Brown has dealt with these issues. Before it’s too late, talk to him and see if he can help you overturn your conviction!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Mr. Brown has represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

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