Written by attorney Brooke Victoria Elvington

Florida Post Conviction Relief: 3.850

The function of an appellate court during a direct appeal in a criminal matter is limited to reviewing issues of preserved legal error. However, post conviction relief broadens the analysis to all aspects of the case, including issues pertaining to effectiveness of counsel, claims of new evidence, involuntariness of a plea, and the legality of a sentence. The following is a general outline of the post conviction process in the State of Florida.

What is Post Conviction Relief?

Post conviction relief generally falls into the following categories: claims of ineffective assistance of counsel, allegations of an illegal sentence, and requests for DNA testing. This article will address the post conviction process under Florida Rules of Criminal Procedure 3.850.

3:850: Ineffective Assistance of Counsel

Florida Rules of Criminal Procedure 3.850 provide several basis for relief; however, in general, many 3.850 motions seek to vacate a conviction, judgment and sentence, based upon a claim of ineffective assistance of counsel. Although it is a common allegation that a defendant received ineffective assistance of counsel, it is insufficient to make such a claim in conclusory form. Thus, it is the defendant’s burden to establish that his/her counsel failed to render effective assistance of counsel, and that had counsel offered effective assistance, the ultimate result could have been different.

Examples of common claims of ineffective assistance of counsel are as follows:

  1. Counsel failed to investigate and file a motion to suppress;

  2. Counsel failed to advise of a plea offer, or failed to a advise of the consequences of accepting/rejecting a plea offer;

  3. Counsel failed to investigate exculpatory witnesses;

  4. Counsel failed to preserve issues for appellate review.

Of course, the above list is not exhaustive, and there are endless possible allegations; however, Florida law provides extensive criteria to establish facially sufficient claims of ineffective assistance of counsel. One of the most common mistakes that individual defendants make during the post conviction process is to allege claims of ineffective assistance without specificity. General claims citing errors alone, absent claims that the errors negatively affected the outcome, will most likely be denied without a hearing.

Involuntary Plea

Similar to claims of ineffective assistance, where a defendant alleges that but for counsel’s failure to properly advise him/her of the consequences of entering a guilty plea, he/she may file a 3.850 motion to vacate the plea.

Common examples involving claims of involuntary pleas are as follows:

  1. Plea was a result of mis-advice from counsel as to the ultimate sentence;

  2. Plea was coerced by fear, misapprehension, persuasion, promises or ingorance;

  3. Trial counsel failed to advise the defendant of the consequences of the plea.

New Evidence

Claims of new evidence are cognizable under Rule 3.850; however, Florida law is clear as to the definition of “new evidence." New evidence could not have been obtained by due diligence during the original proceedings. In addition, claims of new 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 alleged that the evidence could have altered the outcome.

Examples involving claims of new evidence often relate to witness recantations, discovery of exculpatory physical evidence, or the discovery of new witnesses that were unknown during the initial proceedings.

When to file 3.850 motions.

In general, 3.850 motions must be filed within two years of final judgment and sentence. A judgment becomes final either upon the date of an appellate mandate affirming 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.

If an appeal is filed, the trial court will not have jurisdiction to hear a post-conviction motion until after the appeal is concluded.

Exceptions to the Two-Year Requirement.

There are few 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. Defendant retains counsel to file a 3.850 motion; however, 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; and

  4. A substantive change of law announced by the Florida or US Supreme Court applies retroactively.

Successive Motions.

In general, successive motions are not permitted. However, if the motion is filed after the first motion was dismissed because of some kind of legal deficiency, so long as the second motion is filed within the two-year time period, the motion will be permitted.

In addition, 3.850 motions must not be used to duplicate the appellate process. In other words, issues that could have been raised on appeal, must not be raised in a 3.850 motion. Further, issues that were raised on appeal are final, and thus, the circuit court will not consider claims related to an adverse ruling from an appellate court.

Amendments to Motions.

A defendant is entitled to amend a post conviction motion, and to assert additional claims where the two-year period has not expired, and where the trial court has not ruled on the initial claims. In cases where the two-year time period already expired, the motion may still be amended if the purpose of the amendment is limited to enlarging the issues initially raised.


Where to file.

3.850 motions must be filed in the circuit court that rendered judgment.

What happens after the motion is filed.

After a motion is filed, along with a defendant’s signed oath as to the factual merits raised in such motion, the trial court analyzes 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 purpose of an evidentiary hearing is to litigate the defendant’s claims of error. In most cases, the State will call the trial counsel as a witness, and the trial counsel will testify as to the merits of the claim. It should be noted that a defendant waives attorney-client privilege with the original attorney as to issues related to a 3.850 claim. Further, the State can, and often does, require testimony from the defendant. Thus, the defendant can be forced to testify. Issues of credibility are left to the trial court’s discretion.

It is the defendant’s burden to prove his/her allegations at the evidentiary hearing.

The time period from the point of filing a motion to obtaining an evidentiary hearing and then final ruling, can vary greatly depending upon the jurisdiction. However, regardless of the jurisdiction, in most cases, the time period ranges from one year to more than two years.

Types of Relief.

The object of a 3.850 motion is generally to vacate the conviction, judgment and sentence. The effect of vacating the judgment is to place a defendant in the same position that he/she was in prior to the plea or conviction. Thus, the case does not “go away" because of a successful 3.850 motion; rather, the defendant faces re-trial with the same possible consequences as in the original proceeding. For the reason, it is important to evaluate whether filing a 3.850 motion is beneficial or desired.

Denial of 3.850 motions.

Regardless whether a motion was denied without hearing, or following an evidentiary hearing, a defendant has the right to file a direct appeal.


Investigating possible 3.850 relief is often inevitable for criminal defendants; however, the motion process should not be abused and the decision to file a motion should be based on careful evaluation of both the merits and the remedies sought. This brief outline is meant only to give a general overview to the process as applied to 3.850, and there are numerous additional issues that should be analyzed.

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