Post-conviction Relief

Criminal Defense Lawyer serving St Lucie, Indian River, Martin, Okeechobee including Fort Pierce, Port St Lucie, Stuart & surrounding cities.

Post Conviction Motions in Florida State Courts

3.850 Motions

Florida Rule of Criminal Procedure 3.850 provides for an opportunity to ask for relief after a criminal conviction when certain circumstances exist.

The relief sought is generally a setting aside or vacating a conviction, most often due to a claim of ineffective assistance of counsel, meaning that your previous lawyer did not act reasonably during the course of your initial representation. These motions have time restraints attached to them. In a capital case, the claim of ineffective assistance of counsel has a 1 year time limit. In a non-capital case, it's a 2 year time limit. The time begins to run when the judgment and sentence becomes final.

There are three other ways in which a criminal defendant can make a viable claim for post-conviction relief that is not time barred. They are (1) when a defendant can establish newly discovered that was not known to the defendant or the defendant's lawyer previously and could not have been known by the exercise of due diligence; (2) when a fundamental constitutional right asserted was not established during the 2-year time limit and has been found by the courts to apply retroactively; or (3) when the defendant hired an attorney to within the time limits and the attorney failed to act in time.

Post Conviction Motions in Federal Courts

§ 2254 and §2255 Motions to Vacate, Set Aside, or Modify a Conviction

The motion to vacate, set aside or correct a sentence provided by 28 U.S.C. §2255 is available to people convicted in federal courts who are in custody. The corresponding federal post conviction tool for state prisoners is the habeas petition governed by 28 U.S.C. §2254.

The §2255 motion is how most federal prisoners go after they have exhausted their appeals. It can be a powerful tool to right an injustice that was not or could not have been raised on direct appeal. The courts have a lot of discretion in deciding what the appropriate relief is in these situations, including possible dismissal of all charges and release of the prisoner, a retrial, or a resentencing.

On rare occasion, a federal prisoner may have a viable writ of habeas corpus pursuant to 28 U.S.C. §2241. If you or a loved one is interested in hiring a criminal lawyer with the intuitive skill to handle post conviction relief, feel free to call the Law Office of Brian H. Mallonee at (772) 464-1991 and talk with us about it.

Brian Mallonee is a Criminal Defense Lawyer Serving St Lucie, Indian River, Martin, and Okeechobee Counties