What Is A Post-conviction Motion?
When you are charged with a crime and you’re convicted, whether you lost at trial or by taking a plea, you have the right to file an appeal. However, the grounds for an appeal are extremely limited when you have taken a plea. Generally, appeals revolve around errors that occurred at a trial. Those would be legal errors such as where the judge would not sustain your objection or would sustain objections against during your case. However, if you lost, you have a right to file a post-conviction motion to get relief that way.
Generally, post conviction motions are aimed at issues that you cannot raise on appeal. There are grounds for post conviction relief including if the sentence is in violation of the constitution of the United States or of the State of Florida. For example, the federal court recently ruled the way Florida’s death sentence is imposed is unconstitutional, so that would be the basis for making that challenge.
You can also argue for a post-conviction motion if the court didn’t have proper jurisdiction to enter a judgment against you or to impose a sentence against you. Another example might be where you argue the sentence you received exceeded the maximum allowed by law. Another possible mitigating factor to relief would be where your lawyer misinformed you about the consequences of your plea or if you were under the influence of drugs or alcohol at the time you took your plea.
The last ground for relief would be if the judgment or sentence is otherwise subject to collateral attack. That generally encompasses the ineffective assistance of the lawyer. That is the most common type of challenge. Errors that your attorney made during the trial are generally not the basis for appealing the decision. Again, appeals revolve around errors that the judge makes. Errors that your lawyer makes, if they rise to a level that’s egregious, can be the basis of getting your case reversed in a post-conviction motion.
Aside from that type of post-conviction motion, there are also motions to correct, reduce or modify your sentence. If it’s an illegal sentence, this can be challenged at any time; otherwise there are time limitations to file these motions. The motion challenging the effective assistance of your counsel is an absolute 2-year limitation and that begins to run at the end of any previous litigation.
If you go to trial, you lose and you appeal the sentence; that appeal might take a year or two before it’s ultimately decided. The time limitation for your post-conviction motion, if you want to challenge your lawyer’s competence, begins to run once the mandate issues from the appellate court. You are not losing your right to that remedy by taking an appeal. It is an absolute 2-year limitation unless there are extreme circumstances that would allow for that time bar to be extended and that’s very rare.
It would have to be something that you were not aware of and could not be aware of that gave you the right to go to court and argue this motion. That’s generally the only exception. Once two years expires after all your other legal remedies are exhausted, you’re out of luck with getting any further relief for the post conviction motion. This is not just another appeal. It extends and goes beyond that.
There is an additional method of challenging the effectiveness of your appellate lawyer; that’s generally called a habeas. If your appellate lawyer does not argue issues that should have been argued and it’s significant enough to have caused a miscarriage of justice so you didn’t get the relief you should have, there is a manner to challenge that through a habeas petition to the appellate court. There’s also a similar habeas relief to the federal court that revolves around U.S. constitutional grounds, if there are any that you could also avail yourself to. That has a one year limitation on it.
If you need a Post-Conviction Motion Explained, call the law offices of Randy Berman for a FREE Initial Consultation at (561) 866-5717 and get the information and legal answers you’re seeking.