How to Appeal or Overturn a Conviction in Florida

Overturning a Florida Conviction

There are many reasons why people who are haunted by an old conviction later want to have the conviction overturned. However, it is a difficult task to accomplish in any state, including Florida.

Courts want convictions to stand, and so the judicial system will rarely overturn a conviction. Individuals seeking to overturn a conviction also must be aware that if successful, the person will be put back in the place he or she was prior to the conviction, and may face a new trial.

Habeas Corpus Relief

Although habeas corpus relief is possible for people who are still serving their sentence under rule 3.800, it is not available to people who have already completed the sentence they received for a particular conviction. Instead, the procedure for people who have completed the sentence is governed by Florida Rule of Criminal Procedure 3.850.

The statute underlines a strict two-year statute of limitation, but there are exceptions to it. Under that statute, there are several grounds under which an individual can seek to have a conviction vacated, including:

• Involuntariness of the plea
• Newly discovered evidence
• Ineffective assistance of counsel

Each category is broad and contains nuances.

Involuntariness of Plea

In this scenario, a person files a motion to vacate based on either being forced into taking a plea by an attorney or the court or failing to be properly advised of the consequences of the plea.

A common example in Florida would include certain driving offenses. Many people in custody appearing at their first video advisement without counsel are given offers of time served, and accept the offer to get out of custody without fully realizing the consequences, including the potential to become a habitual traffic offender. If the individual was not properly advised by the court or an attorney, he or she can file a motion to vacate the conviction and instead fight it.

Exceptions to the Two-Year Statute of Limitations

Normally, the two-year statute of limitations is strictly construed, but there are certain notable exceptions. One issue some individuals face is deportation consequences, even if they are lawful permanent residents, as under immigration law, certain offenses can trigger deportation consequences even for individuals who already hold a green card. The two-year statute begins to run for individuals in this category when they learn of the potential consequence, instead of running from the date of conviction. Peart v. State, 756 So. 2d 42 (Fla. 2000). In Peart, the Florida Supreme Court held that a failure to give proper advisement concerning potential deportation consequences will entitle an affected defendant to vacate the plea and go to trail if:

• The defendant did not know of the potential for deportation as a result of the plea;
• Deportation is now a threat for the defendant;
• The defendant would not have entered the guilty plea if he or she had been aware of the potential consequences

Newly Discovered Evidence

A second broad category covered under Rule 3.850 is based on newly discovered evidence. Not all newly discovered evidence will result in a conviction being overturned, however. Under Florida law, new evidence must be evidence that could not have been discovered prior to trial by using due diligence, the evidence must not have been known by the individual prior to trial, and the evidence must be of such a nature that it would probably result in a different outcome other than conviction. Examples include recantations by witnesses, exculpatory evidence hidden by the prosecution but later discovered, or discovery of new witnesses. The statute of limitations begins to run from the time the newly discovered evidence comes to light.

Ineffective Assistance of Counsel

It is not enough to simply make a bare allegation that your attorney did not do a good job. To be successful at getting a conviction overturned based on ineffective assistance, the burden of proof is on the defendant raising the claim to show that but for the attorney's failure, he or she would have likely received a different outcome. The statute of limitations is strictly construed in most instances under this category, meaning a person must file a Rule 3.850 motion within two years of the conviction entering.

Exceptions to the Statute of Limitations

The two year statute of limitations does have certain exceptions, including convictions resulting in deportation consequences as noted above. Other exceptions occur when a person has hired an attorney within the two-year period to file a motion to vacate, and the attorney fails to do so within the prescribed period, or when the defendant had no access to the Florida Judicial system due to being incarcerated in another state during the two-year time period.

Likelihood of Success

As mentioned previously, it is very difficult to successfully overturn a conviction. However, if you are either within the two-year statute of limitations or meet one of the exceptions, it can be worthwhile. Because the law is complex and this type of motion is difficult to win, it is advisable to proceed with the assistance of an attorney.

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