Appeals & Post-Conviction Relief
If you have been convicted of a crime, you still may be entitled to relief. The procedural posture of your case will often determine the type of relief you may obtain and the method you must follow to obtain it.
If you have not been sentenced, your relief will depend on whether you entered a plea or have been found guilty after a trial.
Guilty Plea – If you have entered a plea of guilty or no contest and are awaiting sentencing, you may be able to withdraw your plea. Pursuant to Florida Rule of Criminal Procedure 3.170, an accused may withdraw a plea of guilty or no contest at any time prior to sentencing if “good cause” is shown. The law favors an accused’s right to trial. As a result, Florida courts have liberally construed the meaning of “good cause” and trial courts are encouraged to allow the withdrawal of guilty pleas prior to sentencing.
Trial Verdict – If you have been found guilty after a trial by judge or jury, you have the right ask to the court for a new trial. If there are grounds for a new trial, you must request it orally or in writing no later than 10 days after the verdict. Failure to timely request a new trial may waive certain rights at the trial and appellate court level.
If you have been sentenced, there are a number of post-conviction remedies which may be available to you. Most have time limitations which you must strictly comply with.
Within 30 days – Two important deadlines occur within 30 day of being sentenced.
(1) If you were sentenced as a result of a guilty plea and you wish to set aside the plea, you must make your request within 30 days of being sentenced. A guilty plea may be set aside after sentencing only in extremely limited circumstances.
(2) If you intend to appeal, after a trial or plea, you notify the court and state by filing your notice of appeal within 30 days of being sentenced. Once a notice of appeal has been filed, a new series of deadlines apply. See our appellate section below for a summary of those deadlines.
Within 60 days – A sentence imposed after trial or open plea may be mitigated or reduced by the court upon proper motion. Pursuant to Florida Rule of Criminal Procedure 3.800, a motion to mitigate sentence must be filed and heard within 60 days of being sentenced. If you appealed, you have a second opportunity to file a motion to mitigate or reduce sentence after your appeal is over.
Within 2 years – Every person accused of a crime punishable by jail has the right to an attorney. Your judgment and sentence may be overturned if your attorney did not provide effective assistance. Pursuant to Florida Rule of Criminal Procedure 3.850, you must raise this issue by filing a sworn motion with the trial court no later than two years from the date your judgment and sentence became final. If you filed an appeal, the two year period starts after your appeal is over.
The appellate and post-conviction process is often an accused’s last opportunity for relief from a judgment and sentence. The process is complex and riddled with traps for the unwary. If you are at this stage of the proceedings, consult a qualified lawyer to maximize your possibility of success. Please feel free to review our appellate and post-convictions results.
Motion for New Trial
If you have been found guilty at trial, in most circumstances, you should file or make a motion for a new trial pursuant to Florida Rule of Criminal Procedure 3.590. This motion must be made within 10 days of the verdict, or it will be waived. Amendments or additions to your motion can be made at any time prior to the expiration of the 10 day period, and if the court permits, any time prior to the ruling.
If you are out on bail for trial, you may be permitted to remain at liberty until the motion for new trial is resolved. If you are in custody, Florida law requires you to remain there while the motion for new trial is pending.
Grounds for New Trial
In some instances a new trial need only be granted if an accused can show prejudice; in others, the court must grant a new trial because prejudice is presumed. A new trial must be granted if any of the following circumstances because prejudice is presumed:
(1) The jurors decided the verdict by lot.
(2) The verdict is contrary to law or the weight of the evidence.
(3) 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.
If an accused can show prejudice, a new trial must be granted in these circumstances as well:
(1) The defendant was not present at any proceeding at which the defendant’s presence is required by these rules.
(2) The jury received any evidence out of court, other than that resulting from an authorized view of the premises.
(3) The jurors, after retiring to deliberate upon the verdict, separated without leave of court.
(4) Any juror was guilty of misconduct.
(5) The prosecuting attorney was guilty of misconduct.
(6) The court erred in the decision of any matter of law arising during the course of the trial.
(7) The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant.
(8) For any other cause not due to the defendant’s own fault, the defendant did not receive a fair and impartial trial. FL ST RCRP Rule 3.600
A well-litigated motion for new trial may mean the difference between another opportunity to require the State to prove that you are guilty, and a lengthy and expensive appellate or post-conviction process. If you have been found guilty and are still within the time period for requesting a new trial, contact a qualified lawyer immediately.
Motion to Mitigate / Reduce Sentence
If you have been found guilty, or have been sentenced as a result of an open plea, you have the right to ask the court to reduce your sentence. However, as previously mentioned, a request to mitigate (reduce) sentence must be made and heard by the court within 60 the sentence being imposed. A motion to mitigate is most effective when the sentencing court was not presented with all of the information that was relevant to determining a fair and reasonable sentence. Motions to mitigate are rarely successful when the sentence was imposed as a result of a legitimate, uncoerced plea bargain with the State for a particular sentence.
At Whidden Law, P.L., we have been extremely successful in convincing courts to reconsider sentences that were imposed without having a full and complete understanding of all of the potential mitigating factors and circumstances. Please take a moment and review our results section for more information.
Motion to Correct Illegal Sentence
If you have been sentenced illegally, you can ask the court to correct the sentence at any time.
If you have exhausted all of the remedies that were previously discussed, you may have no choice but to consider filing an appeal. An appeal allows you to raise mistakes made by the trial court during a plea or trial as well as some other issues. Appeals in criminal cases are governed by Florida Rule of Appellate Procedure 9.140. Strict compliance with this rule is often necessary to properly litigate your appeal.
An accused may appeal any of the following:
(1) a final judgment adjudicating guilt;
(2) a final order withholding adjudication of guilt after a finding of guilt;
(3) an order granting probation or community control, or both, whether or not guilt has been adjudicated;
(4) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida rule of criminal procedure 3.800 (A), 3.850, or 3.853;
(5) an unlawful or illegal sentence;
(6) a sentence, if the appeal is required or permitted by general law; or
(7) as otherwise provided by law.
If you have entered a guilty or no contest plea, you may not appeal, except as follows:
(1) you expressly reserved the right to appeal a prior dispositive order of the lower court;
(2) the lower courts lack of subject matter jurisdiction;
(3) a violation of the plea agreement, if preserved by motion to withdraw plea;
(4) an involuntary plea, if preserved by motion to withdraw plea;
(5) a sentencing error, if preserved; or
(6) as otherwise provided by law.
In some instances, the State may appeal a decision favorable to the accused, and in all instances where an accused files an appeal, the State has the right to cross-appeal.
Courts of Appeal
If you have been convicted of a misdemeanor offense in county court, your appeal is heard by a circuit court. If you have been convicted of a felony offense in circuit court, your appeal is heard by a district court. In certain limited circumstances, the Supreme Court of Florida may ultimately hear your appeal.
Within 30 days of the written order imposing sentence, a Notice of Appeal must be filed with the clerk of court and copies provided to the state attorney and attorney general. An appeal is “commenced” when the Notice of Appeal is properly filed.
Within 50 days of the appeal being commenced, the clerk of court and court reporter must prepare and serve the Record. The Record consists of all of the relevant documents necessary for appellate review.
Within 30 days of the Record being served, the party filing the appeal (Appellant) must serve its Initial Brief.
Within 20 days of the Initial Brief being served, the opposing party (Respondent) must serve its Answer Brief.
Within 20 days of the Answer Brief being served, the Appellant must serve its Reply Brief.
In some cases, oral argument may assist the appellate court in making the appropriate decision. If you want to participate in oral argument, a written motion must be filed no later than the date the last brief is due.
An appeal can be decided in many ways. If the appellate court determines that an error was made at the trial court level, it may reverse the trial court’s decision and remand the case for a new hearing or trial. In some instances, the appellate court may find error but decide that the error was not so significant as to have affected the outcome of the hearing or trial. In such instances, the error is deemed “harmless.” Where only harmless error is found, the appellate court will often “affirm” the ruling of the trial court and dismiss the appeal. In some instances, the appellate court will affirm the trial court and dismiss the appeal without rendering an opinion describing its reasons for doing so. This decision is referred to as a “PCA” (per curium affirmed). When an appellate court decides a case by issuing a PCA, it cannot be appealed to a higher court.
At Whidden Law, P.L., we have been successfully handling criminal appeals for more than a decade. I strongly encourage you to seek the advice of competent counsel if you are considering an appeal. A well-crafted appeal can mean your freedom or the right to a new trial or hearing.
Ineffective Assistance of Counsel
If you have been accused of a crime for which jail is a potential penalty, you are entitled to be represented by an attorney. If you hired an attorney, or one was appointed to you, the attorney must provide effective representation. You may be entitled to relief if your attorney failed to properly assist or advise you. A qualified attorney can help you determine whether you have a claim of ineffective assistance of counsel.
Most ineffective assistance of counsel claims are governed by Florida Rule of Criminal Procedure 3.850. In order to prevail on an ineffective assistance claim you must show that your attorney performed in a deficient manner and that counsel’s performance caused sufficient prejudice to substantially affect the outcome. To determine whether you have a valid claim under Rule 3.850, your post-conviction attorney must have a clear and complete understanding of what occurred during the defense of your case. If you are considering filing an ineffective assistance claim, you must be prepared to document the facts of your case, the method in which your case was resolved, the errors or omissions committed by your attorney, and how they prejudiced your defense. This information will be helpful to the attorney evaluating the viability of your claim.
Ineffective assistance can come in many forms. Some of the grounds upon which Florida courts have found that lawyers have provided ineffective assistance are:
• Improper concessions of guilt;
• Conflicts of interest;
• Failure to appeal;
• Failure to call witness;
• Failure to challenge juror (if apparent on face of record);
• Failure to communicate plea offer;
• Failure to discover evidence;
• Failure to impeach witness;
• Failure to interview witness;
• Failure to investigate;
• Failure to make motions (i.e., motion to sever, motion to suppress);
• Failure to make objections;
• Failure to object to verdict form;
• Failure to oppose motions;
• Failure to present a defense;
• Failure to present exculpatory evidence;
• Failure to preserve issue for review;
• Failure to request jury instruction;
• Failure to suppress evidence;
• Failure to obtain separate counsel for co-defendants;
• Waiver of Defendant’s presence at proceedings;
• Waiver of jury trial.
If you believe that your attorney provided ineffective assistance, be aware that you must raise this issue by filing a written motion with the trial court no later than two (2) years after your conviction becomes final. If you do not appeal, your conviction becomes final 30 days after your judgment and sentence is filed with the clerk. If you appeal, your conviction will be final 30 days after the decision by the appeals court.
All ineffective assistance motions must be filed in writing and must be sworn to. While you can amend such motions any time prior to the court’s ruling, you cannot file successive motions. This means that if you fail to raise an issue upon which relief could have been granted in your motion, and the court issues a ruling, you may waive your right to raise that issue in the future. As a result, it is extremely important to ensure that you raise every possible basis for relief in your original motion. Post-conviction litigation is highly specialized and you should consult with a qualified attorney to assist you in analyzing your case and raising all possible claims.
The attorneys at Whidden Law, P.L. have been successfully litigating ineffective assistance of counsel claims for more than a decade. Please contact us if you would like a free consultation.