Rule 3.850 Motion
Rule 3.850 Motion:
Everything You Need To Know
The 3.850 motion for post-conviction relief falls under the Florida Rules of Criminal Procedure, namely Rule 3.850
What is a 3.850 Motion for Post-Conviction Relief?
The 3.850 motion for post-conviction relief is the primary Florida post-conviction remedy.
Where a direct appeal focuses on legal issues that appear on the record, such as motions that have been filed, the transcripts of hearings and trial, the 3.850 motion for post-conviction relief is something very different.
The Florida Rules of Criminal Procedure
The 3.850 motion for post-conviction relief falls under the Florida Rules of Criminal Procedure, namely Rule 3.850. Attorneys aren’t all the creative sometimes when deciding what to call particular motions. Rule 3.850 discusses topics such as timeliness of post-conviction relief motions filed pursuant to Rule 3.850 and provides some basic information about the motion itself.
A 3.850 Motion is NOT an appeal
A motion for post-conviction relief pursuant to Rule 3.850 is a collateral attack on a conviction, meaning that something outside of the record in court contributed to the result now being challenged. As noted earlier, a 3.850 motion is NOT an appeal. A 3.850 motion can be thought of as the flip side of the same coin with direct appeals. Both can be used to attack the validity of a conviction or sentence, but each have different grounds and different formality requirements..
Rule 3.850 motion FAQs
Why would someone file a Rule 3.850 motion for post-conviction relief?
When does someone have to file a 3.850 motion for post-conviction relief?
How does a 3.850 motion for post-conviction relief differ from a habeas corpus?
Can the Rule 3.850 motion for post-conviction relief be used to challenge DNA evidence?
Why would someone file a Rule 3.850 motion for post-conviction relief?
A post-conviction relief motion pursuant to Rule 3.850 is often used to challenge a conviction or sentence based on the performance of an attorney.
The Florida Constitution and United States Constitution both guarantee EFFECTIVE assistance of counsel. Effective is the operative term here. Having an attorney that is ineffective violates those constitutional protections. The criminal defense process is difficult enough even for seasoned criminal defense attorneys, but it can often be impossible without one.
Perhaps even worse is a criminal defendant having an attorney that only partially performs the duties that are expected of them. Criminal defendants trust that their attorney knows best and they are often not knowledgeable about how or why things happen in the criminal case.
A post-conviction relief motion filed under Rule 3.850 isn’t just used for ineffective assistance of counsel claims.
A post-conviction relief motion can be used for a number of different reasons, including but not limited to:
- The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida
- The court did not have jurisdiction to enter the judgment
- The court did not have jurisdiction to impose the sentence
- The sentence exceeded the maximum authorized by law
- The plea was involuntary
- The judgment or sentence is otherwise subject to collateral attack
When does someone have to file a 3.850 motion for post-conviction relief?
Like most appeals and post-trial motions, a Rule 3.850 motion has strict time limits. Normally you would have 2 years from the date that a conviction becomes final to file a 3.850 motion for post-conviction relief. However, that’s not the entire story.
When a conviction becomes final is not as straight forward as you might think. If a judgment and sentence is appealed from the trial court then the time for filing a Rule 3.850 motion starts a 2 year countdown from the date that the mandate issues from the appellate court.
If a judgment and sentence is not appealed at the trial level then the 2 year countdown for filing a 3.850 motion for post-conviction relief starts 30 days later, essentially adding the timeframe within which a direct appeal could have been filed.
There are a few important time considerations that should be taken into account with a Rule 3.850 motion, including preservation of other post-conviction relief timelines, such as those for a federal habeas corpus, also called a 2254 motion. Since the Anti-Terrorism and Effective Death Penalty Act (AEDPA) there has been only a 1-year statute of limitations for filing for relief under a 2254 motion. That timeline runs along with the time for filing a Rule 3.850 motion for post-conviction relief and does not stop until the Rule 3.850 motion is filed. It is not unusual for a person to blow that deadline. Even seasoned attorneys sometimes are not aware of what does and does not toll the time period within which to file a Rule 3.850 motion.
What types of actions would be considered ineffective assistance of counsel under a Rule 3.850 motion?
Florida case law recognizes a wide variety of attorney actions, or inactions, that would constitute ineffective assistance of counsel for the purposes of a Rule 3.850 motion for post-conviction relief.
The following is not an exhaustive list and as case law develops, there will likely be expansion of some claims and removal of others:
- Failure to preserve the right to appeal
- Failure to assert affirmative defenses
- Failure to advise a defendant of the consequences of a plea including the fact that the plea could subject him to deportation if the defendant is not a U.S. citizen
- Failure to investigate exculpatory evidence or favorable witnesses
- Failure to file viable pretrial motions
- Failure to file a motion for new trial, particularly where the prosecution’s case was weak and there was a reasonable probability that the motion would be granted
- Failure to move to strike a witness’s testimony when the witness refuses to be cross- examined
- Failure to convey a plea offer
It is important to note that not all the actions that may be considered ineffective assistance of counsel always are. For example, an attorney might not call ALL the witnesses that are supposed to testify on a particular subject. Often this is a tactical decision to prevent the possibility of boring the jury or court, or to keep a weak witness from looking disingenuous, or to mitigate the risk that multiple witnesses might be inconsistent on what is essentially the same facts.
Making a case for an ineffective assistance of counsel claim is going to be fact intensive and varies wildly between different cases.
How does a 3.850 motion for post-conviction relief differ from a habeas corpus?
Habeas corpus used to be the primary form of post-conviction relief in Florida, but statutes and rules have essentially replaced the writ of habeas corpus with the protections available in a Rule 3.850 motion.
A writ of habeas corpus is still available for particular uses in Florida, but for this discussion it has essentially been replaced by the Rule 3.850 motion
Can the Rule 3.850 motion for post-conviction relief be used to challenge DNA evidence?
The Rule 3.850 motion for post-conviction relief is not used specifically to challenge DNA evidence. Instead the Florida Rules of Criminal Procedure, Rule 3.853, provides a framework for that type of post-conviction relief.
Is an evidentiary hearing part of the 3.850 motion process?
Because a 3.850 motion for post-conviction relief is a collateral attack on the conviction it deals with issues outside of the case record.
This means that a 3.850 motion raises issues that require the court to hear additional evidence. If the case record does not conclusively refute the allegations in the 3.850 motion, then the court MUST conduct an evidentiary hearing.
An evidentiary hearing can be thought of as a mini-trial. Witnesses are called, evidence is presented, all with the goal of convincing the trial court that the issues raised in the 3.850 motion for post-conviction relief have merit and that the court should grant a new trial or take other appropriate actions to grant relief.
Unless the claims raised in the 3.850 motion are clear from the record there is supposed to be an evidentiary hearing. Claims involving changes to the law, however, may not require the Rule 3.850 motion to conduct a full evidentiary hearing.
Can the Rule 3.850 motion for post-conviction relief be used to challenge an illegal sentence?
The 3.850 post-conviction relief motion does have some limited ability to challenge the legality of a sentence, but realistically a similar section in the Florida Rules of Criminal Procedure, Rule 3.800, is designed to address claims of illegal sentences.
Can someone file multiple 3.850 motions for post-conviction relief?
Typically, someone will file a single 3.850 Florida motion for post-conviction relief in their case.
This is because usually the issues that are contained in the 3.850 motion are those known at the time of the trial or the plea, such as ineffective assistance of counsel.
It is possible that a person may want to file a second or successive motion for post-conviction relief pursuant to Rule 3.850. The courts will look disfavorably upon a 3.850 motion that either tries to re-raise issues that were part of direct appeal, an initial 3.850 motion or a petition for writ of habeas corpus. The court expects that issues are raised correctly and only once.
There are a few limited circumstances in which a successive 3.850 motion for post-conviction relief are not only allowed, but necessary when seeking relief. The first is when there is newly discovered evidence of actual innocence. This evidence was not known at the time of trial or plea and, depending on when it is discovered, may alter the timeline for filing a Florida 3.850 motion. The second is when there is a change in the law that the legislature or courts hold to apply retroactively. Under such a circumstance, a subsequent motion for post-conviction relief would contain issues that not have been possible to raise previously.
Frivolous subsequent motions for post-conviction relief under Rule 3.850 can lead to a court preventing a person from future filings and even refer an inmate to the Department of Corrections for sanctions as a result. Subsequent motions for post-conviction relief pursuant to Rule 3.850 have formality requirements as well.
What constitutes newly discovered evidence of actual innocence for a 3.850 post-conviction relief motion?
Newly discovered evidence is a mechanism to file a 3.850 motion in Florida. Often the newly discovered evidence is uncovered AFTER the 2-year statute of limitations on filing a 3.850 motion.
Accordingly, the Rule 3.850 allows for a renewed time frame in order to put forth this newly discovered evidence to be considered.
People often think that newly discovered evidence means any evidence that they have just discover, but it’s more complicated than that. First, the evidence must be that which leads to some finding of actual innocence. For example, if a technician at the state laboratory is caught falsifying DNA tests, but your case didn’t involve any DNA whatsoever, then this is not a valid reason to file a 3.850 motion for post-conviction relief based on newly discovered evidence of actual innocence. Second, newly discovered evidence of actual innocence has to be evidence which you or your attorney could not have discovered with reasonable diligence. Essentially, newly discovered evidence of actual innocence must be new, not just new to you.
Newly discovered evidence of actual innocence does not have to be a separate 3.850 motion. Often a person will file a 3.850 motion for post-conviction relief that contains several legal issues including ineffective assistance of counsel claims and newly discovered evidence of actual innocence. Just be aware that timelines are tricky and newly discovered evidence doesn’t reset the time on other claims that should be raised in a 3.850 motion.