Many Tampa criminal appeals attorneys are questioned about what someone can do when they believe their criminal defense attorney made a mistake. Ultimately, many individuals who are found either guilty of trial or end up in Florida State Prison after a plea bargain feel as though their Tampa criminal defense attorney either made a mistake in the handling or the preparation of the case. The most common remedy for many criminal defendants is what is called a 3.850 Motion. It is based on Florida Criminal Procedure Rule 3.850.
As to the general requirements for Rule 3.850 motion:
This motion must be made two years after the conviction unless one of the following issues arise:
- The attorney failed to file a 3.850 through its own negligence. Recently, we have handled a matter similar to this in Sarasota County and received a favorable ruling from the Second District Court of Appeals in Lakeland, Florida in a client’s case;
- If an appellate court makes a finding that a constitutional right can be applied retroactively, an individual can have an extension for the deadline to file a 3.850 motion; or
- Lastly, and arguably the rarest circumstance, if a new fact that significantly affects the case is discovered by either the defendant or their attorney, the individual can attempt to make a 3.850 motion if the information or newly discovered fact could have assisted in exonerating the defendant. Ultimately though, courts have rarely accepted this and hold this exception to the highest standard. Courts apply such a high standard because ultimately, criminal defendants always find out new or additional facts after a criminal trial. This exception is reserved for the highest and most severe cases for newly discovered evidence. Most commonly, this may arise in matters involving scientific evidence, like the improper testing of DNA, blood, and/or fingerprints. If it is later discovered the testing methodology or the analysis of DNA evidence was done improperly or negligently, this may be an area that a criminal defendant could argue would lead to an extension of time to file 3.850 motion.
In addition, to the timing requirements of the Rule 3.850 motion described above, many times criminal defendants assume that once the motion is granted, the case is discharged. This is absolutely as far from the truth as possible. Many times, the court will immediately set the matter for trial. The court will reason that if you were unhappy with the plea bargain or resolution received from your attorney, then you believe you’re not guilty of the charges and you should go to trial. This is why it is important for individuals to consult with an experienced criminal trial attorney to determine the strategic costs and benefits of filing a 3.850.
If you have someone you know is interested in filing a motion for ineffective assistance of counsel or a Rule 3.850 motion, contact the Tampa criminal appeals attorneys of Hackworth Law, P.A., for a free case consultation. We’ve handled many of these matters. We appreciate your time and attention in reviewing our Tampa criminal appeals attorney blog, and if there’s anything we can do for you, please don’t hesitate to contact our office.