Who Should File a Rule 3.850 Post Conviction Relief Motion?

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction.  The following grounds may be used as the reason for filing:

  1. The sentence imposed was illegal or violates the Florida or United States Constitution.
  2. The court lacked proper jurisdiction to enter judgment or impose a sentence.
  3. The sentence was illegal in that it exceeds the maximum sentence permissible for the crime the Defendant was convicted of.
  4. The Defendant’s plea was involuntary.
  5. The judgment is subject to collateral attack.

When Must a Post Conviction Relief Motion By Filed? 

A post conviction relief motion under Rule 3.850 must be filed within 24 months of the conviction.  Fla. R. Crim Proc.  There are strict time limits on a Rule 3.850 motion.  Under most circumstances, two years or 24 months from the sentencing date is the time limit for filing a 3.850 motion for relief.

What if an Attorney was ineffective in Providing me Advice and Assisting Me? 

There are a number of reasons that an attorney could be considered ineffective and Rule 3.850 would apply.  The following is a list of some of the more common errors that an attorney could make that would be applicable to Rule 3.850.  They are:

  1. An attorney’s failure to preserve the right to appeal.
  2. Failure of an attorney to assert affirmative defense.
  3. An attorney who fails to inform his client of the consequences of a plea agreement.
  4. Failure of an attorney to file applicable motions on behalf or the Defendant.
  5. An attorney who fails to investigate witnesses or exculpatory evidence.
  6. An attorney who fails to request a new trial where there is a reasonable probability of such being granted.

Not all of the above reasons apply all the time, as an attorney may elect to call or not call a witness for strategic reasons, which does not fall into the category of ineffective assistance of counsel.

How does a Post Conviction Relief Motion Compare with a Petition for Habeas Corpus? 

When one is forced to spend time in a mental institution or rehabilitation facility, as a result of the state or federal government ordering such a disposition and you believe that the detention is not legally justified, you can file a petition for Habeas Corpus relief.  This can be done whenever the government illegally imposes incarceration.  Both the Florida Constitution and the United States Constitution provide the right for a person to file a petition for a writ of Habeas Corpus.  A writ of Habeas Corpus may also be filed where a Defendant believes that the laws were misapplied.

Can a 3.850 Motion Involve Issues Outside the Case Record? 

Yes, Rule 3.850 is designed to deal with issues outside of the case record.  As a result, the Court frequently has to have an evidentiary hearing.  At the evidentiary hearing, witnesses may be called to testify, evidence may be presented with the purpose to be getting the court to grant a new trial or provide other relief.

You Should Consult a Criminal Defense Attorney to Find Out Your Options. 

When your freedom is at risk, you do not want to make the wrong decision.  Prior to deciding the best way to deal with your criminal issue is to speak to an experienced criminal defense attorney who can review all of your legal options with you and who can fight to preserve your rights.  If you have been charged with a crime in North Florida, it is in your best interest to contact the Law Office of David M. Goldman, PLLC for a free initial consultation.  Mr. Weinreb is one of the attorneys that can assist you.

About the author

Neil Weinreb is a licensed Florida attorney who has been practicing family law for over 15 years in North Florida.  Mr. Weinreb works for the Law Office of David M. Goldman in Jacksonville, Florida.  Mr. Weinreb has worked as an adjunct professor teaching law to paralegal students at Jones College in Jacksonville, Florida.  You can contact Mr. Weinreb at the Law Office of David M. Goldman for a free initial consultation today to find out how having an experienced attorney on your side can help.  Call (904) 685-1200 today.  Law Office of David M. Goldman, PLLC, 4115 Hendricks Ave., Jacksonville, Florida 32207.  Telephone (904) 685-1200.


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