Post-Conviction Relief

Florida Post-Conviction

There are many state post-conviction motions and petitions that can be used to challenge your conviction, plea or sentence including: a Motion for Post-Conviction Relief pursuant to Fla. R. Crim. P. 3.850; a Motion to Correct an Illegal Sentence pursuant to Fla. R. Crim. P. 3.800, and a Petition for Habeas Corpus pursuant to Fla. R. App. P. 9.141. Each case is unique and we can build a post-conviction plan to fight to get you positive results.
 

Motion for Post-Conviction Relief

This is a common post-conviction motion filed in the trial court that rendered the sentence. Usually, this means having your motion heard by the same trial judge that oversaw the trial or accepted your plea. This motion MUST be filed within two years after your judgment and sentence become final. Generally, this motion attacks the conduct of your lawyer under a claim of ineffective assistance of counsel, attacks your conviction on the basis that there is new evidence not known at the time of trial that if presented to the jury would have resulted in an acquittal, attacks the voluntariness of your plea, or raises errors during sentencing. If successful, generally there is an order for a new trial, a new sentencing, or a withdrawal of your plea.
 

Motion to Correct an Illegal Sentence

In order to preserve certain sentencing errors for review on direct appeal, there must first be a motion filed in the trial court to correct what is believed to be an illegal sentence. A sentence is illegal if it violates the Double Jeopardy provision of the Florida or United States Constitution, exceeds to allowable maximum limit proscribed by law, or sets improper conditions. Most recently, motions to correct illegal sentences have been filed to address sentencing errors resulting from convictions in sex sting operations. There is no time limit during which to file this motion. You can also use this motion to reduce an otherwise legal sentence by arguing a lesser sentence is warranted and that the first sentence was too harsh. If you are seeking a lesser sentence, you MUST file this motion within 60 days of your sentencing or within 60 days from the date your sentence becomes final.
 

Petition for Habeas Corpus

A Petition for Habeas Corpus is an original petition filed in one of the District Courts of Appeal, usually the one which considered your direct appeal. Like a 3.850 Motion, the petition must be filed within 2 years from the date the direct criminal appeal was denied. This original action is the vehicle to claim your appellate lawyer was ineffective or to claim denying your appeal resulted in a manifest injustice. Success in this type of action results in getting a “do over,” a new opportunity to argue an issue on direct appeal.
 

Other Types of Post-Conviction Motions

There are several other types of motions you may be able to file depending on the unique circumstances of your case. For example, because there have been extraordinary advances in DNA technology and testing, there may be evidence from your original trial that was never tested for DNA because the technology did not exist at the time. New tests could exonerate you (Fla. R. Crim. P. 3.853). There is no time limit for the filing for this relief. Changes have taken place in the way certain juvenile offenses are being punished. Some sentences for juvenile offenders that were legal when imposed have since been declared unconstitutional and you may have a right to a sentence review where none existed before. A juvenile convicted of first degree murder, for example, cannot be sentenced to life without the possibility of parole. Other punishments are also illegal and it is important the you have a knowledgeable post-conviction attorney on your side.

Pennsylvania Post-Conviction

Post-conviction relief in Pennsylvania is achieved through filing a petition pursuant to the Pennsylvania Post-Conviction Relief Act (PCRA. A PCRA is filed in the trial court where the defendant was sentenced and seeks to challenge a conviction, plea, or sentence. A PCRA MUST be filed within one year from the date when your direct appeal to the Superior Court has been concluded. There is no requirement to seek review in the Pennsylvania Supreme Court prior to seeking PCRA relief.
 

Petition for PCRA

Generally, the PCRA petition attacks the conduct of your lawyer under a claim of ineffective assistance of counsel, attacks your conviction on the basis that there is new evidence not known at the time of trial that if presented to the jury would have resulted in an acquittal, attacks the voluntariness of your plea, or raises errors during sentencing. If successful, generally there is an order for a new trial, a new sentencing, or a withdrawal of your plea.

The trial court will determine if any of your claims are “conclusively refuted by the record,” meaning the trial record makes it crystal clear that your claim is without merit. If the trial court concludes the record does not refute the claim, usually an evidentiary hearing is scheduled to take evidence to develop a record to determine the outcome of your claims.

Sometimes, the Pennsylvania or United States Supreme Court will create a new right that you may have been denied before. In some cases, a PCRA petition can be used to vindicate those rights long after your sentence was imposed. Most recently, this happened in the area of juvenile sentencing. The United States Supreme Court recognized that a juvenile defendant cannot serve a life sentence without the possibility of parole but instead must have the right to a sentence review after a particular period of time.
 

Pennsylvania Rules of Procedure

The Pennsylvania Rules of Procedure are very specific when it comes to what claims can be raised and how the trial court must determine the outcome. It is imperative that you have a knowledgeable attorney advocating for you. Don’t wait before contacting an appellate lawyer and don’t go it alone. Raising your claims properly and understanding the law as it relates to post-conviction relief can make all the difference.

Federal Post-Conviction

A person convicted in federal court of a federal crime will be sentenced to prison within the federal Bureau of Prisons. Like state prisoners, a federal prisoner has options after his direct appeals have been decided. Like state prisoners, a federal prisoner has a right to seek post-conviction relief. This motion is filed pursuant to 28 U.S.C. § 2255.
 

A 2255 Motion for Post-Conviction Relief

A 2255 motion typically raises a claim the defendant’s lawyer was ineffective, there is newly discovered evidence that would exonerate the defendant, the defendant’s plea was involuntary or unknowing, or that there were errors in sentencing. A 2255 motion can take many forms in part because the law provides a “catch-all” phrase into which many different types of claims can be filed. Your 2255 motion MUST be filed within one year of the date when your conviction and sentence become final.
 

Motion to Correct Violation of Federal Constitutional Rights

There is also a right to federal review for a state prisoner who claims a violation of federal constitutional rights. The defendant MUST still be in custody at the time he files his petition and it MUST be filed within one year of the date all state habeas proceedings are complete. Like its counterpart under 2255, a 28 U.S.C. § 2254 petition is brought in federal court and decided by a federal judge. There are restrictions on the availability of a 2254 motion and it is critical that federal claims are raised in state court first or they will be denied further review.

Under federal law, a petitioner who is denied relief after filing a 2254 motion cannot immediately seek further appellate review. The petitioner must seek permission by requesting a Certificate of Appealability. The federal judge who initially ruled on the petition can issue this permission but, more typically, you seek permission from a panel of three appellate judges in the federal Circuit Court of Appeals in which you brought the petition. Knowing how to navigate this peculiar quasi-criminal proceeding is vital or important rights can be lost.
 

An Appellate Lawyer Can Make All the Difference

Not every federal post-conviction proceeding is the same precisely because every case is unique. Sure, the legal standards don’t change very often and some of the controlling federal case law remains consistent but it is the way the law applies to the unique set of facts that makes the difference. Don’t wait to talk to a smart, creative appellate lawyer, well-versed in the law and the rules of criminal and appellate procedure. This can make all the difference.