Post-conviction motions, also called Post-conviction relief, or Rule 3.850 Motions, are motions filed after any direct appeal is finalized. Typically, these motions have to be filed within two years after the judgment and sentence become final. These motions are filed in the trial court where the case originated. In these types of motions, the defendant typically argues issues related to ineffective assistance of counsel. If the Defense can establish that the trial attorney’s performance was deficient and that the deficient performance prejudiced the defendant, then the original conviction is wiped out and the case starts all over again, as if the first conviction never occurred. The Defense can file this type of motion outside the two-year time limit if the claim is related to newly discovered evidence. The newly discovered evidence has to be such that it could not have been discovered at the time of trial.
Post-conviction motions involve the Defense filing a written motion with the trial court, then the State will have a chance to respond to the motion, and then if the trial court believes the motion has merit, the case will be set for an evidentiary hearing. Typically at that hearing, the original trial attorney will be called as a witness to discuss his or her representation and advice in the original case. The Defense is permitted to call any other witnesses related to the motion. Then, after arguments from the parties, the trial court will determine whether to give the Defendant a new trial. Under these circumstances, the Defendant is exposed to any sentence he originally could have received on the charges.
We will assist you in determining whether a post-conviction motion would benefit your case. Call today so we can discuss your case and whether post-conviction relief is an option for you.