Post-Conviction Remedies. By Melvin Pérez

Post-Conviction Remedies( By Melvin Pérez) This article will cover post conviction motions. Every year many prisoners are faced with the question of what post conviction ( after a person is convicted) motion to file and what is the proper time line and order of filing. Many prisoners miss important deadlines because of lack of proper information. For this reason, it is important to know your rights. With this goal in mind, this article will address post conviction motions and the time line to file. However, this article, is written for the Florida State Prisoner. 3.850 MOTION. In Florida, the most common motion for post conviction relief filed is a 3.850 motion. Florida Rule of Criminal Procedure 3.850 sets (6) grounds for which relief from the judgment and sentence may be obtained for a defendant who has been tried and found guilty or has entered a plea of guilty or nolo contendere, these are: 1) The judgment was entered or sentence was imposed in violation of the Constitutional laws of the U.S. or the State of Florida, 2) The court did not have jurisdiction to enter the judgment, 3) The court did not have jurisdiction to impose the sentence, 4) The sentence exceeded the maximum authorized by law, 5) The plea was involuntary, 6) The judgment or sentence is otherwise subject to collateral attack. As you can see there are several grounds by which to attack a conviction. Yet, the most common claims are ineffective assistance of counsel ("IAC"). The basis for these claims are that the trial attorney did or did not do something that changed the outcome of the proceeding. These claims can encompass every aspect of the attorney's representation of the client, both inside and outside the courtroom. IAC claims come in many forms, here are some illustrations: A) Failure to convey a plea offer, B) Bad advice which lead to rejecting a more favorable plea, C) Failure to call a witness, D) Failure to investigate a witness, E) Failure to file a motion to dismiss or motion to suppress, F) Failure to investigate and present a factual defense, G) Failure to object to improper comments or closing arguments, H) Failure to impeach a witness, and I) Failure to file a bill of particulars. When an experienced attorney, paralegal, law clerk or jailhouse reviews a case, they should be able to identify the basis for an ineffective assistance claim, if errors were committed by the trial attorney. If a basis for an IAC claim is discovered, the claims can be presented in a motion to the trial court and argue within the motion how the basis for each claim amounts to IAC. The ultimate relief in a 3.850 motion is to have the conviction vacated. Relief, however, can come in many other forms and will vary on a case by case basis. Some of the potential outcomes for prevailing in a 3.850 motion are: 1) A new trial 2) A favorable plea instead of a new trial 3) A previous plea offer for a shorter sentence re-offered or 3) complete dismissal of the case. The are many rules that must be followed when preparing a 3.850. Each claim must be facially sufficient and satisfy certain pleading requirements, or the claim can be dismissed or even worse, denied. The motion must be filed within 2 years from when your direct appeal was affirmed, or 2 years from when the time to file a notice of appeal expired, if you failed to file a direct appeal. For the most part a criminal defendant will only get one opportunity to file a 3.850 motion. Once a 3.850 motion has been denied on the merits, any attempt to file another one will be considered a successive filing and be dismissed. IAC claims can be alleged against appellate counsel as well. Florida Rules of Appellate Procedure 9.141(d) allows a criminal defendant the opportunity to assert that appellate counsel rendered ineffective assistance on direct appeal. One example of this would be where appellate counsel filed a brief which raised several issues, but failed to brief a meritorious issue that was preserved for appellate review and this issue could have changed the outcome of the appeal. Another example might be if your appellate counsel filed an Anders brief claiming that no grounds existed to present to the appellate court on your behalf when, in fact, valid grounds did exist. You would only use this motion if: An issue that was preserved for appellate review was meritorious The issue could have changed the outcome on appeal The issue was not presented to appellate court in the initial brief. This motion is not filed in the trial court like a 3.850, it is filed in the District Court of Appeal. There are additional post conviction motion that can be filed. Florida Rule of Criminal Procedure 3.800(a)- Motion to Correct an Illegal Sentence. This motion should be used if a trial court sentences a defendant to an illegal sentence. This motion can be filed "at any time," however, the illegality of the sentence must be on the face of the record. Some examples of an illegal sentence are: the trial court sentenced the defendant to an enhanced sentence, and then ran the enhanced sentence consecutive or the trial court sentenced the defendant to a term of imprisonment followed by a term of probation that was in excess of the statutory maximum of the crime. Florida Rule of Criminal Procedure 3.800(c)- Motion to Mitigate. This motion can be an effective motion under certain circumstances. Under this rule a criminal defendant can ask the trial court to modify or reduce his sentence. The most common reasons are hardship, the defendant is now in a position to have restitution paid in full, or the defendant has fulfilled an obligation for which the trial court imposed at sentencing. The decision to grant or deny relief under this rule rests entirely with the trial court. The motion must be filed within 60-days after the mandate issues from your direct appeal. Once every possible means to obtain post conviction relief from your judgment and/or sentence in state court has been exhausted, an individual may seek further review of any of their issues which violate the laws or Constitution of the United States of America in the federal court system. Federal Court. 28 U.S.C. Section 2254 governs petitions for writs of habeas corpus filed in a federal jurisdiction by prisoners in state custody. Section 2254 requires that the state court be given an opportunity to rule on your Federal claims. In order to prevail on a petition under section 2254, you must show that either the state court's decision on the issue was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. There is one year statute of limitations to file your 2254 petition in the U.S. District Court. The time begins to run from the date that your ninety (90) day period expires for seeking certiorari review in the United States Supreme Court ( whether you seek such review or not) after issuance of the decision in your direct appeal. Any properly filed motion for post conviction relief (or appeal from the denial of such motion) filed at the state level tolls your federal time. This means that even while you have 2 years to file your 3.850 motion if you wait the 2 years you cannot file in federal court. Therefore, you must file your 3.850 motion within one year if you want the federal court to review your claims should the state court deny your claims. END NOTE: Proper research and dedication will give you the best chance to fight and win your conviction. If you put in the time to properly research your claims it will pay off. Never give up until justice has been served. In another article I will go into other areas of post conviction relief. In the mean time stay focused and continue to learn your Constitutional right. Until the next one, keep your head up.

Melvin Perez #x11781

Franklin C.I.

Release date :2031

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