Written by attorney C Suzanne Bechard

Bringing a Claim for Ineffective Assistance of Counsel in Florida

If you believe that your criminal defense attorney was ineffective in representing you in your trial, you may file a motion for postconviction relief. This article discusses what motion to file and what must be alleged to show that your criminal defense attorney was ineffective.

The Motion for Postconviction Relief

Rule 3.850 of the Florida Rules of Criminal Procedure provides that a person may seek relief from a judgment or sentence imposed "in violation of the Constitution or laws of the United States or the State of Florida." Ineffective assistance of counsel violates the right to a fair trial guaranteed under the Sixth Amendment to the U.S. Constitution.

The motion must be filed in the trial court, and it is subject to strict time limitations. In general, a motion for postconviction relief must be filed within two years after your judgment and sentence became final. The judgment and sentence is typically final when the direct appeal is over. You might be able to get around the two-year time limitation if:

  1. The facts on which you rely for your claim were unknown to you or to your attorney during the two-year time frame, and could not reasonably have been discovered;

  2. The fundamental constitutional right you are asserting was not established within the two-year time period and the right has been held to apply retroactively; or

  3. You retained an attorney to file a 3.850 motion during the two-year time period, and your attorney neglected to do so.

What Does Ineffective Assistance of Counsel Mean?

In order to establish a claim for ineffective assistance of counsel, you have to prove two things. First, you must show that your attorney’s performance was "deficient." That means showing that your criminal defense attorney made mistakes in defending you that were so serious that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment.

Second, you must show that you were prejudiced by your attorney’s deficient representation. That requires you to show that the attorney’s mistakes were so serious that you were deprived of a fair trial with a reliable result.

Importantly, you must prove both of those two things. It is not enough to show that your attorney made mistakes if you cannot also show that the mistakes deprived you of a fair trial. You must make both showings in order to prove that your conviction resulted from an unfair trial.

The Contents of the Rule 3.850 Motion

The motion for postconviction relief under Rule 3.850 must be under oath and must include the following:

  1. The judgment and sentence you are attacking, and the trial court that rendered the judgment and sentence;

  2. Whether there was an appeal from the judgment or sentence and the result of the appeal;

  3. Whether a previous postconviction motion has been filed, and if so, how many;

  4. If a previous motion has been filed, the reason the claims you are raising in this motion were not raised in the previous motion;

  5. The nature of the relief you seek; and

  6. A brief statement of the facts and other conditions you rely on to support the motion.

It is important to note that a motion for postconviction relief alleging ineffective assistance of counsel cannot be used as a "second appeal" That is, you cannot raise issues that already were raised or that could have been raised on direct appeal.

Should I Hire an Attorney to File My Postconviction Motion?

You should seriously consider hiring a criminal appeals attorney experienced in postconviction practice to handle your ineffective assistance of counsel claim. An attorney can properly evaluate your case and determine potential outcomes. The postconviction process is complicated and the law has erected many barriers to success, including procedural and time bars. A criminal appeals attorney with experience handling postconviction matters can maneuver the process and increase your chances of success.

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