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Do I get an evidentiary hearing on my 3.850 Motion?

Rule 3. 850 Motions are some of the most common motions filed in Florida criminal cases.  They are arguing that a criminal defendants prior counsel failed to effectively represent them in their criminal proceeding.  In short, you should. Many Tampa appeals attorneys feel as though you absolutely should always get an evidentiary hearing, unfortunately the law permits the court to analyze the motion prior to granting a hearing. In short, the court is analyzing the motion to ensure it is legal sufficient under the specific rule of Florida Rules of Criminal Procedure. If the motion is not legally sufficient, the judge will simply deny the motion, which gives the party filing an opportunity to fix the issue and refile it. Florida courts avoid denying someone such relief for a minor technicality in filing of such a motion.

If the matter proceeds to an evidentiary hearing, this will give the accused an opportunity to prove up the allegations in the Motion. Obviously, the State Attorney’s Office represents the State trying to defeat the motion since they obviously do not want to be forced to retry the case. More often than not, the State Attorney’s Office will simply call the accused’s prior attorney, who will testify as to the allegations against them. They will utilize their file notes and correspondence to and from the defendant to refresh their recollection during their testimony, this is generally very convincing to the court since it is written, as opposed to based solely on someone’s memory. It is important to note that an attorney is able to breach attorney-client privilege to defend themselves and their performance at such a hearing. While this is extremely frustrating to folks, it is simply the current state of Florida law. It is also worth noting the State can call the accused as a witness requiring them to testify in support of their allegations in the 3.850 Motion. As with anytime a client testifies, this is obviously a challenging moment for Tampa appeals attorneys, who grimace at a defendant testifying in a criminal proceeding.

As with all evidentiary hearings, the presiding judge makes the final decision as to credibility and whether to grant the motion. It is critical to have an experienced Tampa appeals attorney with you during these evidentiary hearing to assist you with the questioning of witnesses and even more importantly, arguing the critical legal standards to the court. We have argued and won these sorts of evidentiary hearings.

If you or someone you know has questions concerning a 3.850 motion and/or its evidentiary hearing, contact the Tampa appeals attorneys of Hackworth Law for a free case consultation. We have worked with many individuals concerning issues of ineffective assistance of counsel or 3.850 motions. If you would like to contact one of our Tampa appeals attorneys immediately, please use the “contact us now” tab in the upper right hand corner of our website. Thanks for taking the time to check out our Tampa appeals attorney blog, we look forward to hearing from you.