The post-conviction hearing takes place after a verdict. Criminal defense attorney Jacksonville FL usually file post-conviction motions and petitions in the trial court where they passed sentence. There are many kinds of post-conviction motions; so far, the most common is the motion for post-conviction relief, and the motion to correct an illegal sentence, under the Florida Rule of Criminal Procedure.
Florida Rule Of Criminal Procedure 3.850
These are standpoints established by the laws of the State of Florida. In summary, this rule states the options of individuals who have been tried and found guilty to have a chance to be released from custody. It also applies to defendants in a criminal prosecution that accepted the verdict but didn’t admit guilt before a court of law. Another name for this rule is “Motion to Vacate Sentence.”
When Can You Apply This Kind Of Motion?
If your attorney makes a mistake during the trial, or if your attorney is completely incompetent. In short, ineffective assistance of counsel. You must file it within two years of the conviction.
If there is new evidence found for your case, this is a basis for filing this motion. These could count newly discovered evidence which hasn’t been discovered yet during that time. Another basis for filing this motion is if your witness recanted.
A common misunderstanding about post-conviction motions is that the court will dismiss the case if they granted the motion. That is not always the case. If the motion is granted based on the inability of the attorney to handle the case well, it can usually be brought again to court. Since there is a two-year time limit for putting that motion on record, the accused goes back to “square one,” and the hearing starts over again.
In some cases, witnesses are no longer accessible (or their recollections are already failing), or the evidence may have been misplaced or damaged, or the police officers have already retired from service. When it comes to newly-found evidence, particularly in very old cases, if the prosecution is not able to prove the case, usually, the charges are dismissed.
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