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David R. Carmichael
Board Certifed Criminal Trial Atty.
245 South Central Ave
Bartow Fl 33830
Phone: 863.733.9119

The Florida Bar Board Certified
Post Conviction/Appeals

Lakeland Criminal Attorney

NOTHING CONTAINED HEREIN IS LEGAL ADVISE,THIS IS INTENDED AS A BRIEF OVER-VIEW OF ISSUES ASSOCIATED WITH POST-CONVICTION

After a conviction, it is possible that a client’s conviction may be overturned, or the sentence reversed or mitigated. In some cases it is possible to win a new trial. The following lists a few of the areas that can be addressed after a conviction is imposed.

Motion to Withdraw Plea

Rule 3.170 allows for the withdrawal of a plea at the courts discretion, upon a showing of good cause any time before the sentence is imposed. After the sentence is imposed, and pursuant to Rule of Appellate Procedure 9.140 (b)(2)(A)(ii)(a-e) a Plea may be withdrawn within 30 days of the sentence.

Motion For mitigation of Sentence (This is filed within 60 days of Sentence)

Summary: Upon the imposition of sentence, a Motion to request the court to consider changing the terms of the sentence may be filed. This usually addresses new information that the court did not have at the time of the imposition of the complained of sentence; new witnesses, new evidence, information that the inmate feels the court was unclear on, etc. It may also allow the inmate to accept a new deal offered by the state. This type of Motion may be resolved without a hearing. The sentencing judge can review the new information and grant the Motion, deny the Motion or set the matter for a hearing.

Direct Appeals to the DCA

Summary: Appeals address the errors made by lower courts, these are usually errors that occur in pre-trial Motions and in trial. The purpose is to have a higher court review the decisions made by a trial judge on issues that relate to that judges application of the law. Usually this includes the courts’ rulings on Motions to Suppress evidence, Motions In Limine, and objections made by counsel in pre-trial and trial proceedings. Most individuals who entered into pleas will not be able to file appeals, unless the court gives a sentence that is illegal.

Habeas Relief to the Florida Supreme Court

Summary: The supreme court may on rare occasions elect to accept a case for review when a DCA has denied the relief sought. This usually occurs most often when two DCA have reached different conclusions and the supreme court must determine which is correct.

Post-Conviction Relief (Rule 3.850 Motion to Vacate, Set Aside or Correct Sentence)

Summary: This is a Motion that takes place only after the Direct Appeal is complete. With a few exceptions it must be filed within two years of the sentence becoming final. The 3.850 Motion to Vacate, Set Aside or Correct Sentence. This addresses one of the following issues be complained of by the inmate:

The two year time limit applies except in the three areas below:

See Rule 3.850 (c) for the Contents required to be in the written Motion.

See also applicable Rules under:

3.851 Collateral Relief After Death Sentence Imposed

3.852 Capital Post-conviction Public Records Production

3.853 Motion for Post Conviction DNA testing

Summary of the typical 3.850

Most inmates use this as a tool to address what they consider to ineffective assistance of counsel. The right to counsel is a constitutional right, under the Sixth Amendment. Some examples of issues raised by inmates that can result in a sentence being vacated include: trial counsel did nor relay plea offers, trial counsel failed to investigate a case, Trial counsel failed to speak to or call witnesses, trial counsel failed to file Motions to Suppress evidence like statements and items found in police searches, or trial counsel failed to adequately represent a client in trial, or in pre-trial Motions.

If successful, the inmates sentence is vacated and he starts back in the judicial process before his plea or conviction occurred.

This is a very difficult Motion to Win. The inmate bears the burden of proving that but for the counsels errors, the outcome would have been different. The courts give wide latitude to trial attorneys “tactical” decision to call witnesses etc., as well. Also, plea deals often have records of the judges asking inmates questions about the deals they are getting, and these records will usually overcome an inmates’ claim that he did not enter into a deal voluntarily.

FEDERAL Habeas Corpus Relief Rule 2254.

Summary: If all state court remedies have been exhausted or the State’s laws cannot address the grievance, the Inmate may file an Application for Federal Habeas Relief.

The time frame is with 1 year of the sentence becoming final.

he Inmate files an Application for a Writ of Habeas Corpus, and the court require the following circumstances be present in order to consider jurisdiction:

The court will presume the state court was correct and the inmate must prove by Clear and Convincing evidence any facts they are relying upon. Commonly approved application allege: that a new law has been passed that affects the case, or that there is newly discovered evidence, or there is an obvious error in the state court. The inmate should produce the record as evidence, but if indigent, the courts will order the state to provide the record. The court may appoint counsel to assist an inmate whose Application has been accepted. It is not for addressing ineffectiveness of counsel.

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