En Espanol Available 24/7 Learn How We Can Help – Call

Post-Conviction Relief

Under both federal and state law, motions for post-conviction relief are available that will allow a criminal defendant to vacate, set aside or correct their sentence, or that will vacate a conviction altogether and order a new trial. Unlike the function of an appellate court during a direct appeal (which is limited to reviewing issues of preserved legal error), post-conviction relief broadens the analysis to all aspects of the case, including issues pertaining to the effectiveness of counsel, claims of newly discovered evidence, claims involving the involuntariness of a plea, and claims challenging the legality of a sentence.

United States (Federal): Motion To Vacate/Set Aside Sentence

Under federal law, pursuant to 28 U.S.C. § 2255, one may request the U.S. District Court that imposed one’s judgment and sentence in order to vacate the conviction, set aside or correct a sentence. A section 2255 motion is a modern descendant of the common law petition for a writ of habeas corpus. It is available only to those convicted in federal courts who are in “custody.”
The section 2255 motion is the post-conviction remedy most commonly used by federal prisoners who have exhausted all appeals.

Only “prisoners” who are in “custody” may file this type of motion. The term “custody” encompasses those in prison, on probation, on parole or on supervised release. A defendant need only satisfy the “custody” requirement at the time one files a section 2255 motion, and a defendant’s release from custody during the pendency of a section 2255 motion does not make the case moot or divest a court of jurisdiction to hear the case. However, a defendant who has completely finished their sentence or who has been sentenced to only a fine, may not obtain relief through section 2255.

One may move for relief “on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack.” Most federal courts have interpreted this language to mean that defendants who meet section 2255’s custody requirement may not raise issues which challenge aspects of their sentence unrelated to their custody. A majority of section 2255 motions allege violations of one’s Sixth Amendment right to the effective assistance of counsel. Thus, a section 2255 motion is always the proper vehicle to question whether an attorney’s failure to raise a sentencing issue, which deprived a defendant of his or her Sixth Amendment right to the effective assistance of counsel either at sentencing or on direct appeal.

Generally, criminal defendants have one year from the date on which their judgments of conviction become final to file section 2255 motions. Occasionally, however, a defendant will be able to file a section 2255 motion beyond the date when a new one-year limitation period is triggered by one of the other events listed above. The one-year statute of limitations may be also halted through equitable tolling. Equitable tolling will excuse one’s untimely filing “because of extraordinary circumstances that are both beyond a defendant’s control and unavoidable even with diligence.” However, such relief is extremely rare.

Section 2255 motions are first presented to the judge who presided over the defendant’s trial and sentencing if that judge is available. The judge examines the motion with any attached exhibits, as well as the case record. The judge then either dismisses the motion or orders the government to file an answer. The court will then either grant or deny relief or will hold a hearing for further consideration.

The denial of a section 2255 motion can also be appealed. However, such an appeal may only be pursued if a circuit justice or judge first issues a certificate of appealability. If a certificate is issued, it must indicate which specific issue or issues satisfy the required showing of the denial of a constitutional right. Certificates of appealability to appeal the denial of section 2255 motions are not required as the government is not required to obtain the certificate to appeal the granting of a motion to vacate. Although the appeal of the court’s denial of a section 2255 motion may not proceed without a certificate of appealability, a notice of appeal must nevertheless be filed within 60 days from the date judgment is entered denying the motion.

State Of Florida (State): Motion For Post-Conviction Relief

Florida Rule of Criminal Procedure 3.850 provides several bases for post-conviction relief. In general, many 3.850 motions seek to vacate a conviction, judgment and/or sentence, based upon a claim of ineffective assistance of counsel. It is the defendant’s burden to establish that his or her counsel failed to render the effective assistance of counsel, and that, had counsel rendered effective assistance, the ultimate result would have been different.

Examples of common claims of ineffective assistance of counsel in state court are as follows:

  1. Counsel failed to investigate and/or file pretrial motions, including but not limited to motions to suppress evidence or to dismiss charges.
  2. Counsel failed to advise of the existence of a plea offer or failed to advise the defendant of the consequences of accepting or rejecting a plea offer.
  3. Counsel failed to investigate exculpatory witnesses.
  4. Counsel failed to preserve issues for appellate review.

Where a defendant alleges that, but for counsel’s failure to properly advise him or her of the consequences of entering a guilty plea, he or she may file a 3.850 motion to vacate the plea.

Common examples involving claims of involuntary pleas are as follows:

  1. The plea was a result of mistaken advice from counsel as to the ultimate sentence.
  2. The plea was coerced by fear, misapprehension, persuasion, promises or ignorance.
  3. Trial counsel failed to advise the defendant of the consequences of the plea.

Claims of newly discovered evidence are also cognizable under Rule 3.850. However, Florida law is clear that “new evidence” must be evidence that could not have been obtained by the exercise of due diligence during the original proceedings. Claims of newly discovered evidence are still bound by the same burdens of proof as discussed. Thus, it is not sufficient to make a bare allegation that new evidence exists; rather, it must be specifically alleged that the evidence exists and that, had it been known at the time, it could have altered the outcome of the case.
Examples involving claims of newly discovered evidence often relate to witness recantations, discovery of exculpatory physical evidence or the discovery of new witnesses that were unknown during the initial proceedings.

Generally, a 3.850 motion must be filed within two years of a final judgment and sentence. A judgment becomes final either upon the date of an appellate court affirming a conviction, or if an appeal was not filed, upon the date that the right to file an appeal expired. The time requirements must be strictly adhered to, and if a party violates the two-year deadline, absent a valid exception to the rule, courts will not hear the motion. One should note that if an appeal is filed, the trial court will not have jurisdiction to hear any post-conviction motion until the appeal is concluded.

There are exceptions to the requirement that a 3.850 motion be filed within two years of final judgment. Examples of such exceptions are as follows:

  1. The defendant retained counsel to file a 3.850 motion, but counsel failed to do so.
  2. A defendant had no access to Florida courts because of incarceration in an out-of-state jurisdiction and was without counsel.
  3. New evidence exculpates the defendant.
  4. A substantive change of law announced by the Florida or the United States Supreme Court applies retroactively.

A Rule 3.850 motion must be filed in the circuit court that rendered judgment. After a motion is filed, along with a defendant’s signed oath as to the factual merits raised in such motion, the trial court must analyze the motion to determine whether the claims are legally sufficient. If the claims are legally sufficient, the court will often require that the state respond in writing within a certain period of time. After the state’s response, the court will either enter a final order dismissing the claims as insufficient or will order an evidentiary hearing.

The effect of vacating the judgment places a defendant in the same position that he or she was in prior to the plea or conviction. Thus, one should bear in mind that the case does not disappear because of a successful 3.850 motion. Rather, the defendant faces retrial with the same possible consequences as in the original proceeding.

A motion that is denied without hearing, or following an evidentiary hearing, may be directly appealed to the appropriate District Court of Appeal.

Attorney Paul Petruzzi has over 20 years of experience litigating these matters. Please contact us today for a free consultation.

Thousands of Happy Clients

Hear from our clients in their own words. Read more about some of our recent positive outcomes.
  • "If you are in need of a criminal lawyer in the Miami area, he and his team should be the first people to consult."
    Petra G.
  • "Mr. Petruzzi helped a family member and couldn't give him a better recommendation for the hard work and dedication he put into his case."
    Sam L.
  • "Attentive, professional, compassionate and the best legal defense anyone could ask for."
    Lisette E.

Take the First Step

Se Habla Espanol
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.