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Without a doubt, the two most common questions clients ask after they learn that their attorney failed to provide them with effective representation is “Can I withdraw my plea?” and “How do I withdraw my plea?” Throughout Florida, there are three ways to withdraw a plea, also known as vacating a plea. First, if the guilty or no contest plea was entered before sentencing a person can file a Motion to Withdraw Plea before sentencing pursuant to Florida Rule of Criminal Procedure 3.170(f).
This is a more liberal standard than any other methods because the law favors a trial on the merits. According to this rule, a court is required to withdraw the plea if good cause is shown, but the court also has the discretion to grant the motion regardless. The motion can be made in writing or verbally. There is no time limit when this motion can be filed, as long as it is before sentencing.
The second way to withdraw a plea in Florida is by filing a Motion to Withdraw Plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l). Because the motion is being filed after sentence was imposed, the burden is much higher. In order to prevail, you must demonstrate that a manifest injustice occurred. What does a manifest injustice mean? Florida caselaw, including from the Fourth District Court of Appeals, has found that a manifest injustice occurs if the defendant proves that his or her plea was involuntarily entered or that counsel was ineffective. A plea is involuntary if it is not knowingly, intelligently and voluntarily entered. Critically, this motion must be filed within 30 days after the date of sentencing.
Finally, the third way to vacate a plea is by filing a motion for post conviction relief under rule 3850 or the actual rule, Florida Rule of Criminal Procedure 3.850. If you miss the 30 day deadline to file a motion to withdraw plea, this is the only way to attack your plea. This is a more difficult standard than a motion filed under rule 3.170(l). Fla.R.Crim.P. 3.850 allows you to challenge the voluntariness of your plea in the same manner as rule 3.170. Either way, the prosecutor will fight you tooth and nail unless you obtain the type of leverage that only an experienced and well respected 3850 lawyer will give you. Call the Law Offices of Jason T. Forman at 855-286-3154 to speak to a former prosecutor with over 20 years of criminal appellate experience.
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In addition to vacating a plea, the most common claim under a rule 3.850 or 3850 motion is an ineffective assistance of counsel claim. Although Florida Rule of Criminal Procedure 3.850 specifically lists only six grounds for a 3.850 motion, these six grounds are general and very broad. As such, they cover every possible specific claim, including ineffective assistance of counsel claims. There are too many subsets to list, but some examples would include failure to convey a plea offer, ineffective assistance of counsel at trial, failure to act effectively during the plea process, giving misadvice to a client, failing to call a witness to testify, failing to investigate a defense, failing to file a motion to suppress, as well dozens of other reasons. The general grounds which these fall into are set forth in Fla. R. Crim. P. 3.850(a):
(a) Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida:
(1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
(2) The court did not have jurisdiction to enter the judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.
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Unfortunately, a motion for post-conviction relief filed under rule 3.850 does not allow a defendant to sit and wait to file this motion, unless the sentence exceeds the maximum legal sentence by Florida law. The courts have imposed strict deadlines in an effort to promote finality in sentences and convictions. Here are the time limitations set forth by Fla. R. Crim. P. 3.850(b):
(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final unless it alleges that
(1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence, otherwise known as newly discovered evidence, or
(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity, or
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for a motion for post conviction relief.
Determining when the two year time limit begins can sometimes get complicated. For instance, Mr. Forman was hired by a client who was told by several attorneys that the two year time period for filing a motion for post conviction relief had already expired. These other attorneys, who obviously were inexperienced, failed to realize that a defendant actually has an additional 30 days if no appeal was filed after their plea or conviction.
That’s right, if no appeal is taken, a conviction does not become final until 2 years and 30 days! Pearson v. State, 141 So.3d 722 (Fla. 3rd DCA 2014). Since Mr. Forman was aware of this nuance, he was able to timely file the client’s 3.850 motion for post conviction relief even though he only had 20 days left.
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The answer is sometimes, depending on the specific circumstances of the case. Generally, an untimely motion for post conviction relief is procedurally barred unless it falls into one of the exceptions set forth in Florida Criminal Rule of Procedure 3.850(b) which is listed above. However, an experienced 3.850 lawyer can sometimes find an exception to the exception. This can be done in a variety of ways, such as showing that no crime occurred as a matter of law or by relying upon the manifest injustice doctrine, which allows claims to be presented even if time barred or already raised and denied.
Overcoming an expired time period to file a motion for post conviction relief under rule 3.850 is a very difficult task. Only an experienced 3850 lawyer can make an honest assessment and see if it is possible in your case. Call post conviction lawyer Jason Forman at 855-286-3154 today in order to see what can be done in your case.
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Yes, a Motion for Post Conviction Relief filed under Fla. R. Crim. P. 3.850 must be sworn to by the defendant. This can be either with a notary or without a notary. A 3.850 motion is often filed pro-se (without an attorney) by an inmate in the Florida Department of Corrections without a notary being available. In order to assist these inmates, Florida Stat. 92.525, as well as Florida caselaw, such as State v. Shearer, 628 So.2d 1102 (Fla.1993) allows an Unnotarized Oath at the end of the 3.850 motion. This is a valid oath under current Florida Law.
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This Unnotarized Oath will satisfy the requirement that all 3.850 motions be sworn to by the defendant. In addition to the oath, all motions for post conviction relief filed under Rule 3.850 must include the following, pursuant to 3.850(c):
(c) Contents of Motion. The motion must be under oath stating that the defendant has read the motion or that it has been read to him or her, that the defendant understands its content, and that all of the facts stated therein are true and correct. The motion must also include an explanation of:
(1) the judgment or sentence under attack and the court that rendered the same;
(2) whether the judgment resulted from a plea or a trial;
(3) whether there was an appeal from the judgment or sentence and the disposition thereof;
(4) whether a previous post conviction motion has been filed, and if so, how many;
(5) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions;
(6) the nature of the relief sought; and
(7) a brief statement of the facts and other conditions relied on in support of the motion.
This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. If the defendant is filing a newly discovered evidence claim based on recanted trial testimony or on a newly discovered witness, the defendant shall include an affidavit from that person as an attachment to his or her motion. For all other newly discovered evidence claims, the defendant shall attach an affidavit from any person whose testimony is necessary to factually support the defendant’s claim for relief. If the affidavit is not attached to the motion, the defendant shall provide an explanation why the required affidavit could not be obtained.
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If you are filing a motion for post conviction relief under rule 3.850, the failure to draft the motion properly will result in the motion being dismissed, most likely without prejudice. This will require you to refile the motion. However, to avoid any problems with your motion, especially since it is time sensitive, you must draft your motion in the following form:
(d) Form of Motion. Motions shall be typewritten or hand-written in legible printed lettering, in blue or black ink, double-spaced, with margins no less than 1 inch on white 8 1/2-by-11 inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause.
Interestingly, there is no font size requirement in the rule. There is only a page limitation expressly provided. Although you should be able to express your arguments in 50 pages, a small tweak in font size might allow you to add some additional paragraphs. However, I would not advise using a font less than Times Roman 14 or Courier 12 font. You should also check to see if there are any local rules in your jurisdiction.
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Good news. The Florida Rules of Criminal Procedure provides a Model Form for filing a 3.850 motion. Click here to view a Model Form for a Florida Motion for Post-Conviction Relief under Rule 3.850 or 3850. Of course, you must draft the sworn motion to fit the specific details of your case. Do not simply make conclusory arguments without factual and legal support. An example of a conclusory argument would be “My lawyer was ineffective” or “My lawyer deprived me of my Sixth Amendment right to effective assistance of counsel”. While those certainly may be included in your motion, the failure to specifically allege what your lawyer did wrong will result in your motion being denied.
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In addition to having a sentence and conviction vacated, a motion for post-conviction relief can also be used to help negotiate a lower sentence with the government. Once the government receives a motion for post-conviction filed on behalf of a client which has merit, it sometimes causes the government to negotiate a more favorable sentence. Sometimes, the possibility of filing a meritorious motion for post-conviction relief under rule 3.850 can be successful as well. Mr. Forman has personally used this approach to reduce sentences on several occasions, including reducing a 25 year attempted murder sentence to only 8 years and probation after he discovered perjury by the listed victim in the case.
As you can see, the filing of a motion for post conviction relief under rule 3.850 is actually very complicated and requires that very specific matters be alleged. You are at a tremendous disadvantage if you attempt to use a prison law clerk who works for Honey buns. If you or a loved one need an experienced Florida Post-Conviction Attorney to handle a 3850 motion for post-conviction relief, or if you are simply trying to reduce a lengthy prison sentence, trying to “withdraw my plea” or trying to “vacate my plea”, call an experienced and well-respected Florida 3850 post conviction lawyer at 855-286-3154 to discuss your case. Call now to avoid missing the critical deadline to file the motion.
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Yes, our firm can represent you or a loved one in any city or county in the State of Florida. In fact, we have handled cases throughout the State of Florida, including in Liberty County – the smallest county in the State of Florida! Regardless whether you need a Tampa 3850 lawyer, a Tallahassee 3850 lawyer, Orlando 3850 lawyer, Miami 3850 lawyer, Palm Beach 3850 lawyer, West Palm Beach 3850 lawyer, Daytona Beach 3850 lawyer, St. Petersburg 3850 lawyer, Jacksonville 3850 lawyer, Pensacola 3850 lawyer, Port St. Lucie 3850 lawyer, Polk 3850 lawyer, Collier 3850 lawyer, Marion 3850 lawyer, we will gladly represent you! Obviously, we can file a 3850 in any county listed below and in each circuit:
- First Circuit – Escambia, Okaloosa, Santa Rosa and Walton
- Second Circuit – Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla
- Third Circuit – Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee and Taylor
- Fourth Circuit – Clay, Duval and Nassau
- Fifth Circuit – Citrus, Hernando, Lake, Marion and Sumter
- Sixth Circuit – Pasco and Pinellas
- Seventh Circuit – Flagler, Putnam, St. Johns and Volusia
- Eighth Circuit – Alachua, Baker, Bradford, Gilchrist, Levy, and Union
- Ninth Circuit – Orange and Osceola
- Tenth Circuit – Hardee, Highlands, and Polk
- Eleventh Circuit – Miami-Dade
- Twelfth Circuit – DeSoto, Manatee, and Sarasota
- Thirteenth Circuit – Hillsborough
- Fourteenth Circuit – Bay, Calhoun, Gulf, Holmes, Jackson and Washington
- Fifteenth Circuit – Palm Beach
- Sixteenth Circuit – Monroe
- Seventeenth Circuit – Broward
- Eighteenth Circuit – Brevard and Seminole
- Nineteenth Circuit – Indian River, Martin, Okeechobee and St. Lucie
- Twentieth Circuit – Charlotte, Collier, Glades, Hendry and Lee
If you are looking for an experienced, aggressive and most importantly, highly skilled Florida 3850 lawyer, call the Law Offices of Jason T. Forman at 855-286-3154 and learn how we can help you!