English English Español Español
EnglishEspañol
EnglishEspañol
Criminal Defense

Ineffective Assistance of Counsel

Any defendant who has been sentenced (except those sentenced to death) may file a motion to vacate, set aside, or correct a sentence under Rule 3.850.

Jump to a Section

Florida’s Post Conviction Relief Motions

Florida law provides for several different types of post-conviction motions. Generally, there are two different types of post-conviction relief motions:

  1. Motion to Correct, Reduce, or Modify a Sentence pursuant to Florida Rule of Criminal Procedure 3.800; and
  2. Motion to Vacate, Set Aside, or Correct a sentence pursuant to Florida Rule of Criminal Procedure 3.850 or 3.851 (for death penalty cases).

Although the rules for postconviction motions under Rules 3.850 and 3.851 read similarly, a defendant should hire or consult with an experienced post-conviction lawyer and make sure that the rule imposed is the correct one that is being applied.

The Florida Supreme Court created a model form for postconviction relief motions filed pursuant to Rule 3.850, but there is no model form for Rule 3.800 or 3.801 motions. The model form for a motion for postconviction relief under Rule 3.850 is found at Rule 3.987, Florida Rules of Criminal Procedure.

Correct An Illegal Sentence: Florida Rule of Criminal Procedure 3.800.

Generally, a court may at any time correct (1) an illegal sentence (a sentence that is longer than that allowed by law), or (2) a sentencing scoresheet error. To succeed on a Rule 3.800(a) motion, a defendant must be able to show that the court records demonstrate the defendant is entitled to relief. A Rule 3.800(a) motion should be petitioned to the court that issued the judgment and sentence from which the defendant seeks relief. A defendant, however, cannot seek relief under Rule 3.800(a) while his/her direct appeal is pending.

Motion to Correct Illegal Sentence

Under Florida Rules of Criminal Procedure § 3.800, a defendant can file this motion if they have been sentenced to an illegal sentence that is obviously illegal. There is no limit for when this motion can be filed, and the trial court judge is permitted to correct an illegal sentence at any time. An example of an illegal sentence is if the trial court exceeded the maximum statutory sentencing requirements for the alleged crime.

The defendant’s motion must specifically describe the error in his/her sentence and provide a proposed correction to his/her sentence.

The State may file a response to that motion within 15 days, and that response must either admit or deny the alleged sentencing error. The State may also file a motion to correct a sentence under Rule 3.800(b), but only if the correction of the sentencing error would benefit the defendant or correct a typographical error. A defendant may file a motion for rehearing of the denial of a Rule 3.800(b) motion within 15 days of the order disposing of the motion or within 15 days of the expiration of the 60-day time period for filing an order if no order disposing of the motion is filed.

Motion to Set Aside or Vacate Judgment or Sentence

This motion can be filed up to two years after your sentence has become final. This motion can be filed for different reasons (as listed in Florida Rules of Criminal Procedure 3.850), but the most likely reason is for Ineffective Assistance of Counsel.

For example, if your criminal defense lawyer failed to object when law enforcement officer testified at trial that you invoked your right to an attorney and you were prejudiced at trial because of your attorney’s lack of attention, you can file this post-conviction motion to have your judgment overturned.

Ineffective Assistance of Counsel: Florida Rule of Criminal Procedure 3.850.

Any defendant who has been sentenced (except those sentenced to death) may file a motion to vacate, set aside, or correct a sentence under Rule 3.850 if the defendant has been convicted of a crime following a trial or plea of guilty or nolo contendere.

How to get relief under Rule 3.850

The grounds for relief under Rule 3.850 include:

  1. The judgment or the sentence was imposed in violation of the United States or Florida constitutions or laws;
  2. the court did not have jurisdiction to enter the judgment against the defendant;
  3. the court did not have jurisdiction to sentence the defendant;
  4. the sentence exceeded the maximum allowed by law;
  5. the plea was not voluntary; and
  6. the judgment or sentence is otherwise subject to collateral attack.

See Fla. R. Crim. P. 3.850(a)(1)-(6)

What is the Process for Seeking an Ineffective Assistance of Counsel Claim?

A post-conviction proceeding involves filing and litigating a motion seeking relief after a criminal conviction. It is a ‘do-over’ or a means of introducing new evidence. Most requests for post-conviction relief involve claims of ineffective assistance of counsel, claims that prosecutorial misconduct led to a wrongful conviction, allegations that the sentence was illegal, or a request for DNA testing.

One of the most commonly raised grounds in a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 is that a defendant received ineffective assistance of counsel at trial.

In order to sufficiently plead a claim of ineffective assistance of counsel, a defendant must allege both:

  1. that counsel’s performance was deficient and
  2. that the deficient performance prejudiced the defense.

See Strickland v. Washington, 466 U.S. 668, 687 (1984).

How Do I Prove that My Attorney Was Ineffective?

First, you cannot argue my attorney was ineffective because you were convicted. You must show that the defendant suffered prejudice as a result of his/her attorney’s acts or failure to act, a defendant must show that there is a reasonable probability that the outcome of his/her case would have been different if it had not been for counsel’s deficient performance.

Can a Defendant Still Allege Ineffective Assistance if there was a Plea?

Yes, a Defendant may still allege Ineffective Assistance of Counsel if there was an entry of a guilty or no contest plea. If the defendant entered a guilty plea, he/she must allege that but for the errors of counsel, they would not have pleaded, but would have instead proceeded to trial. See Grosvenor v. State, 874 So. 2d 1176, 1179 (Fla. 2004).

Is a Defendant Entitled to Attorney for a 3.850?

A defendant is not entitled to a court-appointed attorney for the filing of a Rule 3.850 Motion for Post-Conviction Relief. The Defendant is also not necessarily entitled to a free copy of the trial transcript for the purposes of preparing his/her motion. The defendant may, however, file a motion in the postconviction court seeking the appointment of counsel.

When a Defendant files a motion to appoint counsel in the postconviction court, the motion should address the adversary nature of the case, its complexity, the need for an evidentiary hearing, or the need for substantial legal research. See Fla. R. Crim. P. 3.850(f)(7).

Why is it important to have a criminal defense attorney in a 3.850?

A criminal defense attorney can help you file the Rule 3.850 motion. The attorney can also help you prepare a proper motion and can litigate the issues after the court schedules an evidentiary hearing.

If the court orders an evidentiary hearing on the defendant’s motion, the defendant may request court-appointed counsel if the issues are complicated or may require expert testimony, and should state in the request that he/she does not have the education or the sophistication to proceed pro se in those matters.

If the motion, the files, and the records in the case show without doubt that the defendant is not entitled to relief, the postconviction court may deny the motion without a hearing. See Fla. R. Crim. P. 3.850(f)(5).

An evidentiary hearing must be held on an initial 3.850 motion whenever the movant makes a facially sufficient claim that requires a factual determination. Because a court’s decision whether to grant an evidentiary hearing on a rule 3.850 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. If the Rule 3.850 motion is not successful after the evidentiary hearing, then the trial court’s rulings can often be appealed to a higher court.

If the Rule 3.850 motion is not successful after the evidentiary hearing, then the trial court’s rulings can often be appealed to a higher court.

How Does a Defendant get a Hearing on a 3.850?

If the motion, files, and record do not conclusively show that the defendant is not entitled to relief, the postconviction court is required to order the state attorney to respond to the motion. See Fla. R. Crim. P. 3.850(f)(6).

If the postconviction court has not otherwise denied the defendant’s motion, after the state attorney files its response, the postconviction court must determine whether the defendant is entitled to an evidentiary hearing on the motion. If it determines that an evidentiary hearing is not required, the postconviction court must rule on the defendant’s motion. If it determines that an evidentiary hearing is required, the postconviction court must promptly set a hearing and serve notice of the hearing on all parties and make findings of fact and conclusions of law on the motion. See Fla. R. Crim. P. 3.850(f)(8).

Is a Defendant allowed to file more than one motion for post-conviction relief?

A defendant may be permitted to file a second or multiple motions for postconviction relief under Rules 3.850 and 3.851. But that is true only if each and every motion after the first is timely and raises new grounds for relief not previously asserted and decided on the merits in any prior motion under rules 3.850 or 3.851. See Fla. R. Crim. P. 3.850(h). These are very rare because there is a strong preference to resolve all postconviction claims in one motion. Any motion filed after the disposition of the first motion should explain why the defendant failed to assert the new grounds for relief in the first motion. If a defendant files a second motion for postconviction relief that states a ground that the defendant raised in his/her first motion for postconviction relief, the second motion will be dismissed as successive. See Fla. R. Crim. P. 3.850(h). The postconviction court may also dismiss his/her second motion (or other motions following the first motion), if the lower tribunal determines that the defendant’s motion for postconviction relief raises new grounds that could have been raised in an earlier motion and that the filing of the second motion was an abuse of postconviction procedures. See Fla. R. Crim. P. 3.850(h).

What Happens of the Post-Conviction Motion is Granted?

If the post-conviction motion is granted, then the judge can grant the following types of relief:

  1. order a new trial;
  2. modify the sentence; or
  3. grant other relief as necessary.

Usually, you start from the beginning again and begin defending the case again.

When must I file a 3.850 motion?

In most cases, the post-conviction motion must be filed within two years of the date the conviction became final. A conviction is ‘final’ after all appeals are exhausted.

If a defendant is arguing under Rule 3.850 that he/she received a sentence that is greater than that provided by law, a defendant may file the motion for postconviction relief under Rule 3.850 at any time. See Fla. R. Crim. P. 3.850(b). Otherwise, in a non-death-penalty case, a defendant must file his/her motion within 2 years of when the judgment and sentence became final. In a case in which a defendant has received a death sentence, the defendant must file the motion under Rule 3.851 within 1 year of when the judgment and sentence became final. See Fla. R. Crim. P. 3.850(b) and 3.851(d). A sentence becomes final 30 days after rendition in the postconviction court, or, when an appeal is taken, on the date that the appellate court issues its mandate.

The only exceptions to the 1- or 2-year deadlines for filing a motion for postconviction relief (that is not based on an illegal sentence) is to truthfully state in the motion that: (1) the facts on which the claim for relief is based were unknown to the defendant or his/her attorney and the defendant could not have discovered those facts if the defendant had reasonably and actively tried to do so; (2) the fundamental constitutional right the defendant asserts in the motion was not established within the filing window for the motion and the right has been held to apply retroactively; or (3) the defendant hired an attorney to file a Rule 3.850 motion for him/her, but the attorney did not file the motion on time. See Fla. R. Crim. P. 3.850(b)(1)-(3), and 3.851(d)(2)(A)-(C). A ‘fundamental constitutional right’ is one that is given to a defendant under the United States or Florida constitutions.

Examples of Post-Convictions Issues in Florida

The post-conviction motion is filed with the trial court and typically addresses issues outside of the four corners of the trial transcripts. Issues that can be raised in a post-conviction motion can include a showing that:

  1. the defendant had ineffective assistance of counsel at trial;
  2. the plea was coerced;
  3. the sentence was illegal;
  4. DNA testing results would show that the defendant is innocent;
  5. the prosecutor committed misconduct or presented false testimony or evidence;
  6. a witness committed perjury;
  7. evidence of juror misconduct; or
  8. a showing that the law changed after the verdict.

Ineffective Assistance of Counsel Attorney in Tampa, Hillsborough County, Florida

It’s important to contact a defense lawyer as soon as you can. The more time you wait, the more time you give the prosecution to get ready. Additionally, valuable time-sensitive evidence and testimony must be gathered. We will provide you with a free consultation where you will speak directly with one of our attorneys.

The Law Office of Daniel J. Fernandez, P.A. is designed to swiftly resolve any difficulties that you may face. Our experienced attorneys continue to strive upon improving and bettering the situations of our clients. Contact us today so we can fight for you and protect your rights. Call (813) 229-5353.

Pretrial Intervention Program

Our Practice Areas

Why Choose The Law Offices of Daniel J. Fernandez, P.A.?

The attorneys at The Law Offices of Daniel J. Fernandez, P.A. are bilingual and will provide a free and confidential consultation so that you can discuss your situation. Daniel J. Fernandez can help you understand all of your options and may be able to help you find a solution to your problem.

Tampa criminal defense attorney Daniel J. Fernandez has over 43 years of experience in criminal defense and will work diligently to get your situation resolved. He can help guide you through the process. If you need legal assistance, call Tampa Criminal Defense Attorney Daniel J. Fernandez immediately at (813) 229-5353.

Recent Client Reviews

Jazmin C.
Daniel Fernandez and Austin, have made this unfortunate experience as smooth as possible !!! By far... the best in Tampa bay!!! Please don’t not hesitate on calling them if you find yourself in trouble. I promise they are HONEST!!!read more
Guy S.
From the moment I spoke to Mr. Fernandez on the phone was struck with a feeling of confidence and... ease. I knew I could trust him and be reassured that I would be in good hands . I was facing some serious charges. Charges which would have completely destroyed my life irrevocably, however, the team at Mr. Fernadez's law firm took the reins and upon recognizing that I was undeserving of those charges brought against me, worked diligently and tirelessly on my behalf and reached an agreement with the state which even I found to be a fair and painless resolution to the matter. All of this cost me far far less than what many other law firms had quoted without even first listening to my point of view on the events.I strongly recommend if you ever find yourself in need of legal representation. Thank you Austin, Dana, and Mr. Fernandez!read more
Ben E.
My experience with Daniel Fernandez and his team was nothing short of spectacular!!! If I could... give 10 stars I would. He was always there to answer any questions at all hours. They were quick to act and get my case dismissed. It’s nice to have some on my side fighting for me. I would recommend Daniel Fernandez to anyone needing counsel. Thank you so much!read more

Contact Us Today

Do you need legal assistance related to Ineffective Assistance of Counsel? Contact us today to get started.

Do you need legal assistance related to Ineffective Assistance of Counsel?

With over 43 years of experience, Daniel J. Fernandez has a proven history of successfully defending and advising clients in the area of Ineffective Assistance of Counsel. Call now for a free consultation.

Contact Us

Tell us about your situation and we will do everything we can to help you. Our team is standing by to take your message and provide you with legal guidance. We will fight for your rights.

Communities We Defend

Areas of Practice