Once your appeal’s lost and your request for a re-hearing is also lost, there are other post-conviction motions that can be made. In Florida, typically they have a couple of post-conviction motions that people avail themselves of. First one is called a 3.800. And that post-conviction motion is to correct any illegalities that are above the sense. In other words, if the judge scored your sheet wrong and gave you a sentence outside of the statutory maximum; if you were classified as a prison release free offender when you shouldn’t have been, or habitual offender, which you shouldn’t have been, these are errors that can be filed at any time because those are illegal sentences if you prevail.
The Most Common Type of Post-Conviction Motion in Florida is Called a 3.850.
Typically, that motion is filed to challenge the effectiveness or competency of your trial attorney in representing you at the trial so that if your lawyer wasn’t properly prepared, didn’t do the proper investigation, didn’t understand the issues properly, didn’t argue the proper points and didn’t know how to cross-examine the expert witnesses, there are all kinds of things that a trial lawyer is obligated to do, a competent one. And if they fall down in doing those tasks, you got a potential for relief claiming that your counsel was ineffective and you didn’t have a fair trial which is guaranteed to you under the constitution.
The Tougher Element to Prove to Succeed in that Motion is to Prove that Actual Prejudice Occurred
So, there is a two-pronged test for this motion that has to be satisfied to prevail. First, you’ll have to show that there was error, that’s agreed error and it was improper for the lawyer to do or not do a particular thing. The tougher element to prove to succeed in that motion is to prove that actual prejudice occurred. In other words, had your lawyer done what he should have done, would the results have been different to your benefit? This is very speculative. So, it’s not as easy to prove. You can always prove the lawyer made a mistake but just making a mistake is not enough to prevail on a 3.850. There has to be actual prejudice to your case that you can show that the lawyer’s incompetence had occurred and that is something you’ll have to convince the trial court judge of, you go back to the same charge judge’s convicted you to ask for this relief.
A Lawyer Can’t be Engaged to Condemn His Own Practice and a New Lawyer Would be Needed to Attack the Previous Lawyer’s Performance