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What is Post Conviction Relief?

The term post-conviction relief, commonly referred to as PCR, is a legal process in which a convicted individual can seek to vacate, set aside, or adjust their sentence. Compared to an appellate court, post-conviction relief is a broader analysis of all aspects of a case. This can include the legality of the sentence, counsel effectiveness, claims involving newly discovered evidence or the involuntariness of a plea, etc.

Federal Section 2255
With federal cases, 28 U.S.C. § 2255 can be used to request the U.S. District Court to vacate, correct, or set aside a sentencing. It is only available to those convicted and in custody (those in prison, probation, parole, or supervised release).
Common claims to use section 2255 are:
Sentence imposed is in violation of the Constitution or laws of the United States
The sentence was without jurisdiction to impose such a sentence
The sentence was in excess of the max authorized by law
The sentence is otherwise subject to collateral attack
Normally, criminal defendants will have one year from their conviction becoming final to file a section 2255 motion. There are conditions, however, that would allow section 2255 motion beyond the one-year limitation period.
The motion is then presented over the judge, if available, who presided over the original trial. The judge reviews the motion with all details attached. They’ll then either dismiss the motion or request a follow up from the government. The court will then grant or deny the relief or request additional hearings.
Note a denial of a section 2255 motion can itself also be appealed. This would require a certificate of appealability issued from the circuit justice or judge highlighting which specific issues satisfy the denial of a constitutional right.

Florida Rule 3.850
Through Florida Rule of Criminal Procedure 3.850, the following (some similar to section 2255 of the United States) can be used as claims for relief from judgement or release from custody:

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

Once you have a viable case to litigate, the motion shall be under oath and include:

a description of the judgment or sentence under attack and the court which rendered the same;
whether there was an appeal from the judgment or sentence and the disposition thereof
whether a previous postconviction motion has been filed, and if so, how many
if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions
the nature of the relief sought
a brief statement of the facts (and other conditions) relied on in support of the motion

A rule 3.850 motion requires you to file 2 years from the conviction for post-conviction relief. Some exceptions do apply. For example, the defendant retained counsel to file a 3.850 motion but the counsel failed to do so.

The post-conviction relief process requires an experienced defense attorney to review the case and provide meaningful results and relief from your conviction. Here at the office of Michael B. Cohen, we will review the sentencing and pursue all routes for post-conviction relief. Call us today at 954.928.0059 to get relief now.

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