Florida Criminal Appeals and Post-Conviction
Former Prosecutor with 27 Years of Experience
Appeals Lawyer
Former Prosecutor with 27 Years of Experience
Appeals Lawyer

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.

posted 2020 | State v. CP (Broward County)

This year has certainly been one most people want to forget, but not this client. He will be getting out in less than three years! Client was charged with multiple burglaries and was a prison release reoffender (PRR designated). After being convicted, he was sentenced to 30 years in prison. He lost his appeal and was beginning to lose hope. He was 25 years old with a mandatory 30 year sentence and desperate for help.

The client heard about Mr. Forman from a fellow inmate that Mr. Forman successfully assisted. The family hired Mr. Forman to file a motion for post-conviction relief under Florida Rule Criminal Procedure 3.850, often referred to a 3850 motion. After examining all of the records, Mr. Forman filed a seven claim motion, arguing that he was entitled to a new trial because his lawyer did not provide effective assistance of counsel.

The trial was plagued with numerous errors because his trial lawyer failed to object to the improper actions of a very aggressive prosecutor. The prosecutor improperly commented in closing argument, violated Giglio by knowingly presenting false testimony by a co-defendant, presented improper evidence, and even made improper arguments at sentencing. Although Mr. Forman believed his motion was strong, the prosecutor offered a reduction in sentence that was too good to pass up! Of course, the client and his family are ecstatic that he will be home in less than three years.

posted 2020 | State v. KJ

This was a tough burglary appeal that was won even though the trial lawyer failed to object at the most critical time of the trial. The client was charged with burglary and grand theft after being accused of entering her former boyfriend’s house, stealing 19 guitars and expensive watches. She was observed on a neighbor’s surveillance camera putting items in her car, but explained to law enforcement that she was only retrieving her personal items that she left at the residence.

After initially speaking to law enforcement, she invoked her Miranda rights and informed the detectives that she did not want to talk to them anymore without her lawyer. Despite numerous discussions before trial, the prosecutor informed the jury in opening and closing statements that the client invoked her right to remain silent. Unfortunately, her lawyer failed to object when the detective testified she asked for a lawyer and refused to answer any further questions.

When the trial lawyer fails to object at trial or fails to make a proper objection, it is much harder to win on appeal. Despite this major obstacle, Mr. Forman was able to convince the appellate court that the issue was sufficiently preserved and the court agreed. The three-judge appellate panel reversed the conviction and vacated her prison sentence! Client was thrilled with the positive outcome.

posted 2020 | State v. MR (Broward County)

Without a doubt, hiring the right lawyer can make the difference! This tragic case involved a DUI manslaughter where two victims were killed. The client was a bright, young man who made a terrible mistake. The client’s family hired a high-powered DUI lawyer to handle his case. A motion to suppress the evidence was filed, but it was denied. The client’s case was a very difficult case to win, but his lawyer advised him that he could get him a reasonable sentence by filing a motion for downward departure and entering a plea.

The client entered an open plea, which meant that the judge would decide what happened after the sentencing hearing. Normally when a client enters a plea, the sentence is negotiated with the state. The client wanted to make sure that things went well, so he hired a second DUI lawyer to assist. This also did not help. Unfortunately, the judge denied the departure motion and sentenced the client to 23 years in prison.

After an unsuccessful appeal, the client’s family hired Mr. Forman to file a motion for post-conviction relief in order to vacate the plea and try to start over. After multiple edits with his client, Mr. Forman filed a twelve-claim motion alleging that both attorneys were ineffective and that the client’s plea was not voluntary. Although the client and Mr. Forman were ready to go “all the way” with the motion, an opportunity arose for a possible resolution.

After reviewing the motion, and after many months of tough negotiations, Mr. Forman was able to get the client’s prison sentence reduced by 10 years! The client made the decision to forego the motion and took the significant sentence reduction. Success comes in many different forms when handling these difficult motions – especially when the case was initially resolved with by a plea. Of course, the client and his family were very appreciative and pleased with the result! Making wise decisions, especially when hiring a lawyer, is critical.

posted 2019 | State v. R.S. (Pasco County)

This is a great example of how an experienced and persistent post-conviction lawyer can change the game. Mr. Forman was hired by his client to see if he could remove the 10 years of probation that he was given in addition to his prison sentence. The client was charged with a sex offense and was represented by a public defender.

The client explained the situation to Mr. Forman. The client explained that he wanted to accept a plea offer that he thought was previously given, but when he went to court, his attorney was not present. Instead, a different public defender was there. When the client wanted to accept the plea offer in court, the state only offered a plea that included an additional 3 years of prison.

The public defender told the client that he should just wait and speak to his assigned lawyer at the next court date, which the client agreed to do. The prosecutor informed the judge that the new plea offer would remain open. Of course, when he showed up at the next court date, the prosecutor now added an additional 10 years of probation to the last offer.

The client correctly assessed the situation and still accepted the plea offer because he was fearful he was going to get a life sentence if he went to trial on his unwinnable case. He informed Mr. Forman that he took plea knowing that he would simply try to remove the probation later.

After hearing what happened, Mr. Forman immediately formulated a strategy to present in the motion for post-conviction relief. Four claims were presented and focused on the fact that the lawyer who appeared in court never informed the client that the prosecutor could increase the plea offer once the prosecutor agreed to keep it open. Mr. Forman argued that the client would have accepted the plea offer had he been given this simple advice. Case law supported this argument.

In addition to knowing the law, a good attorney also never quits fighting for his client. This is best illustrated in this case, where the trial court initially entered an order denying some of the claims and while also requiring the state to respond. Because he was well-versed in the law regarding this type of claim, Mr. Forman recognized that the judge relied on incorrect case law and logic when she denied the claims.

As a result, Mr. Forman filed a motion asking the judge to change her mind due to this reason. Naturally, trial judges rarely change their mind after making a ruling. However, the judge agreed with Mr. Forman and re-opened those claims. After several weeks, Mr. Forman was able to convince the prosecutor drop 8 of the 10 years of probation that was imposed. Naturally, the client was extremely happy with reduction and gladly agreed to be re-sentenced! Persistence and knowledge of the law paved the way for this outcome.

posted 2019 | State v. M.F. (Hernando)

This case was a long fought battle which resulted in a fair resolution. The Client was charged with Aggravated Battery and was placed on probation for 3 years. The client quickly violated probation several times and was ultimately arrested for new drug charges. She was represented by a public defender and was sentenced to 10 years in prison.

The client filed a pro-se motion to withdraw her plea, but the motion was denied.  She then filed a motion for post-conviction relief and later contacted Mr. Forman. Mr. Forman told the client to wait and see if a hearing was going to be granted. The client and Mr. Forman stayed in touch for over a year until something happened on the case. Although the client’s motion was technically deficient in many ways, the trial court granted an evidentiary hearing.

However, the client really had no chance of prevailing on the motion as presented. Mr. Forman was hired and decided to focus on a single claim – that counsel was ineffective for failing to use an expert at the client’s sentencing hearing. The Client was hesitant to focus only on one claim, but Mr. Forman explained to her the reason for his recommendation and the pros and cons of doing so.

The client trusted Mr. Forman’s advice and Mr. Forman hired a local respected clinical psychologist to evaluate the client. The doctor’s report and evaluation were beneficial to the client so Mr. Forman filed an amended motion for post-conviction relief. The doctor appeared at the evidentiary hearing and was ready to testify at the hearing. Mr. Forman and his client were also present.

After many discussions, the prosecutor conceded that the claim had merit and agreed to re-sentence the client to 5 years in prison and the remainder on supervision with residential treatment. The client quickly agreed to be re-sentenced and was released from prison a week later! Client was very happy.

 

posted 2019 | G.M. v. State (Broward)

This is another reason why the appeals lawyer that you hire can make all the difference! Some appeals lawyers are simply better then others. Most lawyers who claim that they are appeals lawyers are simply lawyers who handle all type of criminal cases – “a jack of all trades…a master of none!” A little research will show that they are simply criminal trial lawyers.

This small, but important case demonstrates why there is simply no substitute for a criminal appeals specialist like Mr. Forman. This appeal was won solely based on his vast knowledge of the law involving improper comments in closing argument by the prosecutor. These comments were not objected to by defense counsel who was obviously unaware that they were improper.

The client was arrested for DUI after he refused to provide a breath test. The facts of the case are unimportant, except that the prosecutor made several arguments to the jury that commented on the client’s failure to provide a breath sample. Although these comments are permissible to show a consciousness of guilt, the prosecutor argued in a manner that shifted the burden of proof to the client.

A defendant is presumed innocent and these type of comments are highly improper. Unfortunately, a well-respected trial lawyer who has been practicing for 31 years, did not realize that these clever comments were improper. Luckily, Mr. Forman immediately recognized that these were improper. However, since the trial lawyer did not object, the issue had to be raised under an exception known as “fundamental error”, which is rarely granted.

Despite the trial lawyer’s failure to preserve the issue for appeal, Mr. Forman was able to convince the three-judge appellate panel that these comments denied the client of a fair trial. A new trial was granted! Naturally, the client was thrilled with the result. Remember, the good lawyers know the rules – the great lawyers know the exceptions!

posted 2019 | State v. R.A. (Lake County)

Victory comes in many forms when handling a motion for post-conviction relief. Some clients want a full exoneration and a new trial, while others simply realize their case is unwinnable and want a sentence reduction. Mr. Forman always tries to create options for his clients so that they are not limited to one possible outcome. However, prosecutors will usually not agree to anything unless you have strong claims and invoke a fear that they will lose.

Here, the client had multiple burglary cases in Lake County. He was offered a 4 year global plea offer to resolve all of the cases, but based on the advice of his trial lawyer, he rejected the plea offer. He went to trial on one burglary case and was given 10 years in prison. He then subsequently took a 5 year plea offer on the remaining two cases.

Mr. Forman was hired and filed a motion for post-conviction alleging eight grounds of ineffective representation. After a lengthy period of time, the trial judge granted an evidentiary hearing for each ground. Because the client accepted the 5 year plea offers, the client was trying to lower the 10 year sentence to 5 years. Unfortunately, the prosecutor was the same tough prosecutor who handled the trial, but the judge was even tougher.

After many months of negotiations, the prosecutor agreed to reduce the client’s sentence by a few years if he agreed to drop the motion. The client talked to his family and decided to take the sure thing and reduce his sentence. The client was re-sentenced and eagerly waits his release.

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