Florida Criminal Appeals and Post-Conviction
Former Prosecutor with 25 Years of Experience
Appeals Lawyer
Former Prosecutor with 25 Years of Experience
Appeals Lawyer

POSTED 2022 | STATE V. PH (BROWARD COUNTY)

The client was arrested and charged with vehicular homicide involving the tragic death of two people. Even though there were no drugs or alcohol involved, he decided to enter an open plea based on his conversations with his lawyer. However, it was later discovered that his lawyer gave him misadvice regarding several matters, including his ability to contest the charges. His lawyer candidly admitted she misadvised the client.

The client filed a motion to withdraw his plea before sentence, pursuant to Florida Rule of Criminal Procedure 3.170(f). The trial court denied the motion and the client proceeded to sentencing many months later. The client filed a motion for downward departure, which was granted by the trial court. However, the trial court still imposed a 10 year prison sentence followed by probation.

The client was referred to Mr. Forman to represent him on appeal. Mr. Forman filed the appeal challenging the denial of the motion to withdraw plea, but noticed there were potential problems with how the motion to withdraw was handled. The brief addressed these problematic areas, which Mr. Forman thought could also be handled in a motion for post-conviction relief if necessary.

However, this was not necessary since the appellate court granted the appeal, reversed the order denying the motion to withdraw plea, and vacated the 10 year prison sentence. The State filed a motion for rehearing, which was denied. The client is now free and is able to fight his case.

POSTED 2022 | STATE v. RS (MIAMI-DADE COUNTY)

This is another example of why it is important to choose a lawyer who specializes in criminal appeals and post conviction cases. Client was charged with Trafficking in Heroin in Dade County and his co-defendant was caught on tape. The offense carried a 25 year mandatory minimum sentence so he hired a well-respected trial lawyer to represent him. The State offered the client a 7.5 year plea offer to resolve the case.  Based on his conversations with his lawyer, the Client rejected the plea offer and went to trial.

Unfortunately, even the best trial lawyers make mistakes. The client was convicted and was sentenced to the whopping 25-year mandatory sentence. The client then hired another lawyer to handle the direct appeal. The appeal was denied and the client was stuck with his 25-year prison sentence.

The client hired Mr. Forman in order to file a motion for post conviction relief based on ineffective assistance of counsel. He spoke to Mr. Forman and explained his version of what took place. After reviewing the trial transcripts and the entire file, Mr. Forman filed a motion for post conviction claiming twelve grounds for relief.

Mr. Forman argued: trial counsel was ineffective for failing to properly advise the client which caused the rejection of the plea; the rejection of the plea offer was not knowingly and intelligently done; counsel was ineffective for failing to object and move for a mistrial due to the prosecutor’s improper comments in closing argument; counsel was ineffective for failing to meaningfully conduct depositions; counsel was ineffective for making assertions in opening statement; counsel was ineffective for failing to object and move for a mistrial due to improper testimony; counsel was ineffective for not calling an available witness; as well as other claims.

Because the Client was already serving five years in prison on an unrelated charge in another county, Mr. Forman advised the Client that he should attempt to resolve the case if a reasonable plea could be entered. After many months of negotiations, the prosecutor was willing to reduce the Client’s sentence from 25-years in prison to 8.5 years in prison, followed by 6.5 years of probation with eligibility of early termination.

Although the Client believed Mr. Forman filed a strong motion for post-conviction relief, he wisely decided to accept the offer and the motion was conceded to by the State. The Client did not want to take the risk of turning down this opportunity. Instead of having a 2043 release date from prison, the client will be released in 2025. Although this cannot be done in every case, Mr. Forman was pleased he was able to obtain such a drastic reduction in sentence.

 

posted 2021 | State v. MW (Putman County)

This was an incredible and long fought victory on appeal. The client was convicted of Sexual Battery and sentenced to 30 years in prison. He filed an appeal, which was denied. Mr. Forman was hired by the client’s family in order to file a motion for post-conviction relief alleging ineffective counsel.

The facts of the case involved injuries to the genitals of the teenager that was critical to the State’s theory of the case. The State presented the testimony of an expert who told the jury the injuries were the result of sexual abuse. The teenager also testified. However, defense counsel never presented his own expert to refute this assertion and present evidence of an underlying medical issue that caused the injuries.

Mr. Forman noticed numerous other errors committed by defense counsel. Counsel failed to object to numerous improper comments in closing argument, improper testimony about the opinions of other experts who did not testify, promised evidence in opening statement and failed to present it, as well as numerous other errors.

The trial court granted an evidentiary hearing, where Mr. Forman was able to present the client’s case, including having an expert testify about the injuries sustained. Not surprising, the post-conviction court denied the motion. Mr. Forman told the client he expected the court to deny the motion, but Mr. Forman wanted to make a good record for the appeal.

Mr. Forman was also retained to handle the appeal. After presenting the case to the appellate court, including oral argument, the Fifth District Court of Appeals reversed the client’s conviction for sexual battery and his 30 year sentence. The court found that the combined errors of trial counsel rendered him ineffective and ordered a new trial.

posted 2021 | State v. PK (Orange County)

Sometimes a sure thing is better than taking a risk. Client was charged with multiple counts of fraud and theft as a habitual felony offender. The State offered a plea of 10 years in prison. The client rejected the plea after her lawyer told her the plea was too harsh and he could obtain a better sentence. The client entered an open plea to the judge expecting to receive a lesser sentence. Instead, she was sentenced to a combined 30-year sentence consisting of 20 years in prison, followed by 10 years of probation.

After losing her appeal, Mr. Forman was hired to file a motion for post-conviction relief seeking to withdraw the client’s plea. Mr, Forman argued the client’s plea was involuntary and that trial counsel rendered misadvice. The State responded and agreed that an evidentiary hearing was required. Prior to the evidentiary hearing, Mr. Forman and the State discussed a possible resolution. The State agreed to reduce the client’s sentence by 10-years (5 years prison and 5 years probation) if she wanted to resolve the motion.

Having already missed an opportunity, the client decided it was wise to accept a guaranteed 10-year reduction of her sentence. Client was grateful she was able to obtain a reduction in sentence.

posted 2021 | SC v. MF (Broward County)

Lawyers know who to send their clients to when they need an appeal. A criminal defense lawyer referred the client to Mr. Forman to defend an appeal being filed in this quasi-criminal matter. Mr. Forman was hired by the client who successfully obtained an injunction against the boyfriend of the client’s ex-wife. The boyfriend sent inappropriate emails to the client suggesting improper conduct with the client’s young daughter.

The boyfriend filed an appeal raising several issues seeking to vacate the injunction. However, a technical issue existed that would mean the appeal was untimely and would have to be dismissed. The jurisdictional issue arose because the boyfriend filed a motion for rehearing in the lower court asking the judge to reconsider the injunction. However, the motion was untimely filed. Based on this technical issue, the appeals court dismissed the appeal! Needless to say, the client was happy that his daughter was protected and the injunction remained intact.

posted 2021 | State v. DC (Osceola County)

This is another example of why choosing the right post-conviction lawyer makes a difference. Mr. Forman was hired by the client after the client was convicted of Grand Theft. The client hired a well-known appeals lawyer in Central Florida, but the appeal was denied.  Surprising, the other appellate lawyer missed a critical issue that would have resulted in reversal.

Mr. Forman was hired to handle the post-conviction motion because the client wanted a post-conviction lawyer who was not from Central Florida. After reviewing the trial transcripts and the file, Mr. Forman noticed that the trial lawyer failed to request an available common law defense, but not yet listed in the jury instructions – the good faith defense. Mr. Forman knew the law pertaining to this defense because he had previously won an appeal based on the failure to seek this jury instruction.

Mr. Forman filed a motion for post-conviction relief alleging numerous grounds of ineffective counsel. The trial court granted an evidentiary hearing where witnesses could be presented in order to prove his client’s claims. At the evidentiary hearing, trial counsel explained why he failed to request the critical good faith jury instruction. Mr. Forman told the client his testimony was not necessary because he believed he would win the motion based on the caselaw provided. After hearing arguments, the court indicated it would render an order.

Mr. Forman was correct. Several weeks later, the trial court granted the client’s motion for post-conviction relief, vacated his conviction, and awarded a new trial! The client was obviously thrilled with the outcome.

posted 2021 | State v. RG (Manatee County/Tallahassee)

“That was much quicker than we expected”. It took my Mr. Forman less than 30 days after being retained to have his client’s sentence reduced from 18 years in prison to 6 months of community control! Mr. Forman was hired after the Client’s previous lawyer committed one of the worst cases of legal malpractice ever seen. This result was simply amazing.

The client was convicted of numerous sex offenses stemming in 1993. He was sentenced to prison and was released on conditional release. Conditional release allows certain offenders to be released from prison, but they must abide by numerous conditions. The client was released eleven years ago and had been a model offender. Not only did he do everything he was supposed to do, he helped other sexual offenders who were released into the community. His supervising officer, as well as local law enforcement, recognized him as a leader.

The client moved to an adjacent county. He went to visit a bird sanctuary and veteran’s memorial with an out of town friend. Although no children were present, he was violated for visiting these two “parks”. He was taken into custody and hired a local attorney. His attorney  inexplicably advised the client to waive the hearing and forward the matter to Tallahassee so they can decide what to do. To the client’s dismay, his conditional release was revoked and he was ordered to serve the remaining portion of his sentence, giving him a release date of 2039, eighteen years later. His lawyer was simply horrible.

Mr. Forman was retained by the Client’s friend, who explained the situation. After reviewing the appropriate paperwork and speaking to the witnesses, Mr. Forman found a technicality that he believed would demonstrate that the client did not violate the terms of his conditional release. The problem was that there was no formal appeal allowed of the commission’s decision. The client was already in custody for about 50 days before Mr. Forman was retained.

The client and his friends were gravely concerned whether anything could be done. Yet Mr. Forman devised a two-prong plan. First, he would try to get the commission to change their decision – certainly a tough task.  If that did not work, then he would file a writ of habeas corpus in the circuit court, alleging that the client was revoked for violating a condition that did not exist. Mr. Forman focused on the word “loiter”, as opposed to the word “visit” – a one word technicality that could make the difference.

Although there is no formal appeal process,  Mr. Forman knew that if his client’s case was properly presented to the commission, they may realize that the client was violated wrongfully. He prepared a lengthy packet, which included letters of endorsement and photographs demonstrating that he was not loitering. He also argued that the client did not violate the condition he was accused of violating.

After reading the packet, the commission decided to place the matter on a future docket. Mr. Forman sent multiple correspondence to the commissioners urging them to reconsider. Amazingly, the commission changed their decision and placed the Client on six months community control instead of serving the 18 years remaining! An awesome outcome.

posted 2021 | State v. BB (Hillsborough County)

A great lawyer is not afraid to challenge whether a judge can be fair.  Mr. Forman removed yet another judge (fourth time) from presiding over his client’s motion for post-conviction relief- a very difficult task. The client was convicted of capital sexual battery and lewd molestation. His appeal was handled by his trial lawyer, which was denied. The client and his family always thought the judge was biased against him, but it is often hard to prove. The client received two life sentences.

Mr. Forman was hired to file a motion for post-conviction relief seeking a new trial. While reading the transcripts of the sentencing proceeding, Mr. Forman noticed some comments made by the court that would indicate that the judge could not be fair when considering his motion.

Mr. Forman filed his motion for post-conviction relief, along with a motion to remove the judge from hearing the motion. Surprisingly, the judge granted the motion to remove the judge! The client’s motion for post-conviction relief will now be heard before a new judge.  The client and his family are ecstatic, although he still has a long road ahead of him.

posted 2021 | State v. DH (Central Florida)

Mr. Forman’s perfectly executed legal strategy allowed the client to withdraw his open plea for kidnapping, burglary, and fleeing and eluding.  The client was advised by his trial lawyer to enter a plea to the judge and hoped to receive a downward departure sentence. Instead, he was sentenced to four life sentences and 60 years in prison- a total disaster. Mr. Forman was hired to handle the appeal, but the appropriate remedy was to try to vacate his plea.

Mr. Forman discovered inappropriate comments were made by the judge so he filed a motion to remove the judge.  Not surprisingly, it was denied, along with his motion to reduce his sentence. As described in the post below, Mr. Forman was forced to appeal and successfully had the judge removed from the case – which is never easy to do.

Mr. Forman then filed a motion for post-conviction relief seeking to withdraw his client’s plea and allow him to go to trial. The motion alleged that defense counsel was ineffective for failing to file a motion to remove the judge, as well as for failing to advise the client about certain matters, including being deemed a sexual predator.

Two days before the evidentiary hearing, the prosecutor emailed Mr. Forman and told him that he was agreeing to the motion.  Mr. Forman, the client, and the prosecutor appeared before the judge and his sentences were vacated! The client and his family were thrilled and are gearing up for trial.

posted 2021 | State v. DH  (Central Florida)

What do you do when your judge is unfair and biased against your client? As a lawyer, it takes guts to file a motion telling a judge that he or she is unfair. It takes an even bolder lawyer to have the appellate court actually remove the biased judge from your case. Unfortunately, this happens way too often. Here is yet another instance (third time) that Mr. Forman successfully had an appellate court remove a judge from a case – not an easy task.

Mr. Forman was hired to file a motion for post-conviction relief after the client was given four life sentences. During the preparation of the motion, Mr. Forman learned that the trial judge made off-the-record comments. Instead of simply filing the motion for post-conviction relief, Mr. Forman devised a perfect legal strategy. He would file a motion for disqualification and a motion to mitigate sentence. By filing this motion instead of a motion for post-conviction relief, Mr. Forman knew that a favorable ruling in the appellate court would pave the way for success in vacating the client’s open plea.

As expected, the trial judge denied both motions. Mr. Forman appealed the trial judge’s denial and won. The trial judge was required to remove himself from the case, which was assigned to another judge. The client now has a new judge and an appellate decision to use as a basis to vacate his plea. This was a great first step and of course, client was happy.

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