Post-conviction motions, also called 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 his or her trial 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 or within the two years after the judgment and sentence became final.
Post-conviction motions involve the new Defense attorney reviewing the trial court record and transcripts from the trial to find any errors that occurred. Then, the Defense attorney files a written motion with the Court which argues which errors occurred and why the defendant was prejudiced by the errors. Then, the trial court will review the motion and if it finds it legally sufficient, it will direct the State to file its own written response. If the State cannot refute the allegations in the motion, the trial court will set the motion for an evidentiary hearing. At that hearing, typically the original trial attorney will be called as a witness to testify as to his or her performance and strategy in defending the case. The defendant will have an opportunity to testify, and 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.