After the Appeal: The Basics of Post-Conviction Relief Motions

Bruce Griffith Howie

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Criminal Defense Attorney

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Posted almost 3 years ago. 4 helpful votes

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When a defendant in a criminal case loses on appeal, the next step available to the defendant is a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, often referred to as a "3.850 motion." While an appeal raises issues that can be found on the "record on appeal", a 3.850 motion deals with issues that occurred during the criminal case but which were not necessarily made on the record. These can include ineffective assistance of the trial counsel, misconduct by the prosecutor or the judge, false testimony by the witnesses, newly discovered evidence, or a major change in the law.

According to Rule 3.850, the motion must be filed within two years of the date the judgment and sentence becomes "final," meaning either two years from the deadline for filing an appeal when no appeal was filed, or two years from the time the appellate court issues its final order in the direct appeal. It is important, however, to file the 3.850 motion as soon as possible, certainly within one year, after the judgment and sentence become final, because otherwise the limitations period for a federal habeas corpus petition will expire.

The 3.850 motion itself is not too complicated. There is a form motion in Florida Rule of Criminal Procedure 3.987 which is usually available to Florida prison inmates. The first part of the motion recites the procedural history of the case including the trial, the appeal, and other post-conviction motions, and the second part states the grounds or basic facts describing the reasons why relief such as a new trial or reversing the judgment should be granted.

While the appeal is heard by the appellate court, the 3.850 motion is filed with the trial court where the conviction occurred. The trial judge, or more likely a lawyer working for the judge, reviews each ground to see if it is in proper form and states good cause for relief. If it does not, or if the court record refutes the ground, then that ground is dismissed or denied. But if the ground states a good reason for relief and is not refuted by the record, then the judge will order the State to respond to such grounds in writing. The judge then reviews the State’s response and decides whether to deny the ground or whether a hearing should be held to resolve the factual issues raised in the motion. Once the hearing is held, the judge issues a final order either granting or denying each ground. If there is no hearing, the defendant can make a summary appeal to the appellate court. If there is a hearing but the court denies all grounds, the defendant can appeal the denial of relief to the appellate court.

In filing a 3.850 motion, a defendant should know that generally the motion is a "one-shot" deal, and so all good available grounds should be raised in that one motion. The trial court will allow a second motion only if it raises new grounds based on facts that could not have been discovered with due diligence by the defendant or the trial attorney, or if a change in the law grants a new right that gives an additional ground for relief.

Many defendants in prison attempt to write and file their own Rule 3.850 motion and seek the assistance of law clerks (other inmates who work in the prison law library) to draft the motion. It is a good idea, however, to retain private counsel to review a "pro se" 3.850 motion along with the record on appeal and other information to make sure that all grounds are being raised and that the grounds being raised are done so in a legally sufficient way.

Additional Resources

For more details on post-conviction relief motions, obtain a copy of the Florida Rules of Criminal Procedure and read Rules 3.850 and 3.987. To learn the basics of federal habeas corpus and the time limitation, see Title 28 of the United States Code, Sections 2241 through 2255.

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