Skilled Post-Convictions Attorneys

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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. If you need help with a post-conviction matter, seek the help of Boswell & Dunlap LLP. Our Polk County criminal defense attorney will do everything possible to safeguard your rights. The following lists a few of the areas that can be addressed after a conviction is imposed. Nothing contained herein is legal advice. This is intended as a brief overview of issues associated with post-conviction.

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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 After the sentence is imposed, and pursuant to Rule of Appellate Procedure 9.140 (b)(2)(A)(ii)(a-e) a Plea may be withdrawn within 30 days of the sentence.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

Upon the imposition of sentence, a motion to request the court to consider changing the terms of the sentence may be filed within 60 days. 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

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

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

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:

  1. The court gave an illegal sentence
  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 exceed the maximum
  5. The plea was involuntary
  6. The judgment is otherwise subject to collateral attack

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

  1. Newly discovered evidence
  2. The constitutional right asserted was not asserted in a timely fashion
  3. The inmate had an attorney, but the attorney did not file the motion for post-conviction relief in time.

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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
  • Trial counsel failed to adequately represent a client in trial, or in pre-trial motions

If successful, the inmate’s 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 due to the counsel’s 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

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 within one year of the sentence becoming final.

The inmate files an application for a writ of habeas corpus, and the court require the following circumstances be present in order to consider jurisdiction:

  1. The facts of the conviction was contrary to federal law, or
  2. The conviction/decision was based on an unreasonable determination of facts as presented in evidence in the state court.

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, 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.

To learn more about post-conviction matters, please give our firm a call today. Our criminal lawyer works with clients throughout Bartow, Polk County, and Central Florida.