Often when people say post conviction they’re talking about postconviction motions to vacate or set aside a judgment under Florida Rule of Criminal Procedure 3.850 (sometimes called “thirty eight fifty,” “three eight five oh,” or “Rule 3” motions).
But “post conviction” literally means anything that happens after conviction, and that is a much broader subject than just postconviction motions under Rule 3.850.
What you can do next depends a lot on what has happened in the case and when.
Did the jury return a verdict less than ten days ago?
If so, written motions for judgment of acquittal or for a new trial or arrest of judgment may be available.
Was a guilty or no contest plea entered?
Defendants may be able to withdraw a guilty or no contest plea depending on when they pled, the reason for withdrawing the plea, and whether they have been sentenced.
Was the sentencing less than 30 days ago?
Defendants in Florida have a statutory right to direct appeal their judgment and sentence. The direct appeal is started by filing a Notice of Appeal within 30 days of rendition of the judgment and sentence. Florida Rule of Appellate Procedure 9.900(a) is the official form Notice of Appeal, but if the defendant is represented by an attorney at trial, Rules of Criminal Procedure 3.111(e) and Appellate Procedure 9.140(d) require the attorney to file the Notice of Appeal for the defendant if the defendant wants to appeal. Indigent defendants have a right to appointed appellate counsel on direct appeal.
Is the sentence illegal?
Defendants may be able to move to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800.
Did the direct appeal just end? Or was there no appeal and it has been less than two years since the judgment and sentence became final?
Then it probably is time to file a Rule 3.850 motion. The Rule covers more than just ineffective assistance of trial counsel issues – for example, newly discovered evidence – but usually people mean ineffective assistance of counsel when they talk about Rule 3.850 motions.
There is no right to counsel in Florida for postconviction relief under Rule 3.850, so most defendants file their Rule 3.850 motion pro se meaning “on their own.”
- Here is a good introductory article on ineffective assistance of counsel motions.
- The Florida Rules of Criminal Procedure contain the Rule itself and include an approved form for defendants to file their own Rule 3.850 motion. Fill in the blanks and follow the directions.
- The Florida Bar’s Appellate Practice Section provides a free Pro Se Appellate Handbook (in English, Spanish, and Creole) that provides a tremendous amount of good information on self representation on appeal and in Rule 3.850 motions.
Florida law also recognizes a defendant’s right to effective representation on appeal, so a petition for ineffective assistance of appellate counsel may also be available.