A direct criminal appeal is the process of taking a case to a higher reviewing court to review errors purportedly committed by the trial court. Typically, you have thirty (30) days from the date the judgment and sentence was rendered to file an appeal.   You may also have the right to appeal a judicial denial of a post-conviction ruling.  For those appeals, you would have thirty (30) days from the date the Order was entered denying your request for relief.

Please request a consultation to discuss the possibility of filing a Belated Appeal, should you have failed to file within the allowed time period.

3.850:  A person who has been tried and found guilty, or has entered a plea of guilty or no contest may file a motion under this statute based on the following grounds:

1. the judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States 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; or
6. the judgment or sentence is otherwise subject to collateral attack.

Rule 3.850 is most commonly used to assert ineffective assistance of counsel claims.  The Sixth Amendment to the United States Constitution grants all people the right to counsel in a criminal prosecution. The United States Supreme Court has held that this right necessarily entitles to represented persons accused of crimes the right to effective assistance of counsel.  The United States Supreme Court decided the landmark case of Strickland v. Washington, 466 U.S. 668 (1984) holding that a criminal defendant has the right of effective assistance of counsel and established a two prong test to determine if a defendant is entitled to relief predicated upon the deprivation of the effective assistance of counsel: 1) counsel’s performance fell below and objective standard of reasonableness and; 2)the deficient performance of counsel gives rise to a reasonable probability that if counsel had performed adequately the result would have been different.      

A motion under this section must be filed within 2 years after the judgment and sentence becomes final UNLESS:

1. the facts on which the claim is based were unknown to the movant or their attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence; or,
2. the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity; (e.g. new case law has created that didn’t exist before or there was a modification of a relevant statute), or,
3. the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.

A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time.

Rule 3.853 – Motion for Post-Conviction DNA Testing:  This rule provides procedures for obtaining DNA testing.  This Motion must be made under oath. This motion is available only in cases where the identification of the perpetrator is a genuinely disputed issue, and there was physical evidence that was not previously tested for DNA or evidence was tested and the results were inconclusive and subsequent scientific developments in DNA testing techniques likely would produce a definitive result. 

This Motion must assert that the DNA testing (or retesting) would establish that the movant is INNOCENT and not the person who committed the crime and that DNA testing will either exonerate the movant or that DNA testing will mitigate the sentence imposed.

2254 Federal Habeas Corpus Petition:  A § 2254 petition is a motion for a writ of habeas corpus. This motion cannot be filed until the applicant has exhausted the remedies available in the courts of the State. This motion is used to challenge a conviction.  A person who is in custody under a state court judgment may challenge his or her conviction in federal court on the grounds that there was a violation of his or her federal constitutional rights.

There are significant barriers to federal habeas relief for people with state convictions. It is important to understand that the federal courts are very reluctant to grant relief from state convictions. Furthermore, in 1996 the U.S. Congress revised the habeas statute to create a strict filing deadline, as well as significant additional procedural barriers which did not exist before 1996.

The grounds for relief under §2254 are quite narrow. A federal court will deny a habeas petition unless the defendant can show convincingly that the state court proceedings violated a principle of federal constitutional law clearly established by the U.S. Supreme Court; and the federal constitutional error “had substantial and injurious effect or influence” in determining the outcome of the state court proceeding [this is also called an “actual prejudice” standard]. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

A series of statutory changes and federal court decisions have made it clear that certain kinds of claims may not be raised in a federal habeas petition. With very limited exceptions, you cannot:

1. try to establish a new legal or constitutional principle;
2. raise a Fourth Amendment search or seizure challenge to try to exclude evidence used against you in the state proceeding SeeStone v. Powell , 428 U.S. 465 (1976);
3. challenge state statutes or state case law, unless you think they violated a clearly established federal constitutional right; or
4. challenge a witness’s credibility.

You may be able to raise these kinds of issues as violations of your federal constitutional right to effective assistance of counsel, but only if:

1. your attorney acted unreasonably in not properly raising the issue at the proper time in state court;
2. your attorney’s actions prejudiced your case; and
3. you properly raised the ineffective claim throughout the state court system.

Even if a federal court does grant a habeas writ, this usually means only that the state is required to give the defendant a new trial. It does not mean that the defendant necessarily goes free. There are rare exceptions to this rule.

A § 2254 petition must be filed within one year from when your state conviction became “final.” If you file a § 2254 petition outside of the one-year limit, your petition will be dismissed without consideration of its merits. The date of finality for state convictions is usually complex and is based on a number of factors.