FAQs About Post-Conviction Motion

What Does The Term Habeas Corpus Actually Mean?

It literally means bring in the body; meaning that the person who is being incarcerated is being wrongly incarcerated and the motion for habeas corpus is to bring the person into court so that attorneys can determine whether or not in fact they are being illegally detained. The basis for that would be constitutional issues regarding the sentence, jurisdictional issues regarding the sentence, length of the sentence, as well as competence of counsel issues.

At the federal level, it is limited to constitutional based issues not necessarily ineffective assistance of counsel. However, if your attorney is so poor that it rises to the level of not getting a right to a fair trial that can also be the basis of a federal, constitutional, habeas petition.

Who Qualifies For The Post Conviction Motion? What Are The Criteria Of A Good Candidate?

Any person convicted of a crime has the right to file for post conviction relief. They also have the right prior to that to file a direct appeal. There are no exceptions as far as having the right to do so; if you’re convicted, you qualify. However, that doesn’t mean you’re necessarily going to be successful.

What Is The Process For Filing These Motions?

Generally, after a conviction, there is almost always a direct appeal to the appellate court. That’s where the transcript of the trial is reviewed. Following that, legal briefs are filed on behalf of the defendant and the State citing case law supporting their points of challenge. Once the appellate court makes that decision, if it’s against the defendant, the defendant has a right to file for post conviction relief. That is usually based upon ineffective assistance for counsel.

The attorney who you engage would then review not only all of the trial transcripts, the discovery exhibits and the briefs of the appellate lawyers, they’d also interview and talk to people with knowledge of the case. They will make a determination of whether or not there are significant failures of the trial attorney presenting the case, and had they not been committed, it would have resulted in a different outcome. That’s the legal standard under Strickland that is required to be proved to be successful in a post-conviction motion.

Once the review is done, then a petition is filed, which is the motion for a post-conviction relief. You have to set out all of the errors that your attorney committed and the argument about why it would have made a difference had they not committed them. That’s filed back with the trial court. Once the trial court gets that motion, they review it to see if it has all the proper information that is required by the rule. If it does, they will then enter an order directing the State to respond within a certain number of days.

Depending on how the State responds, the court can either make their decision without a hearing or grant an evidentiary hearing to bring in testimony about the issues complained of. If they do grant that hearing, then the judge would enter his decision after hearing the evidence on whether to grant the post-conviction relief or not. The post conviction relief is generally geared towards getting a new trial. It’s not the basis of dismissing the case; it’s the basis of going back and getting a lawyer that’s more competent that will effectively defend you. Essentially you get to go back and do it again if you’re successful in the motion. That’s the basic process.

If the court denies your motion for post conviction relief, you have the right to appeal that decision as well. You will then ask the appellate court to review and determine whether or not that judge committed any error in making that decision.

Get answers to some Frequently Asked Questions Regarding Post-Conviction Motion, or call the law offices of Randy Berman for a FREE Initial Consultation at (561) 866-5717 and get the information and legal answers you’re seeking.