Losing an Appeal / Post-Conviction Motions

Interviewer: What happens if you lose an appeal? What do you do then?

Randy Berman: There are host of different post-conviction motions available to a person convicted of a crime. I often get retained to work for someone after they lose their appeal. I will look at how the appellate lawyer did his or her job. I’ve had success filing what is called a writ of habeas corpus against appellate lawyers for ineffective assistance and counsel claims. It’s not that often but I just won one recently, where the appellate lawyer missed an issue in his appeal that had he argued it would have granted relief. I argued that and the District Court of Appeal (4th DCA) agreed and granted relief. That’s one way.

There are ways to get post-conviction, post-appeal relief. One motion is called 3.800 entitled Correction, Reduction and Modification of Sentences, that generally challenges the legality of the sentence or sentencing errors and can be filed at any time. That’s if you determine after reviewing the records that the defendant score sheet was scored wrong or he was classified as a particular type of offender and he shouldn’t have been. In Florida they’ve got habitual offenders, and they’ve got prison release reoffenders, and these are labels that enhance a sentence that would be less if you weren’t labeled with those enhancements.

Sometimes they’re incorrect. Sometimes they’re labeling these people with these enhancements that shouldn’t be. You can go back and argue that it was an error to classify them or that the points that they added up were not added up correctly or that the prior convictions that they thought the person had really weren’t prior convictions that would affect the guideline score sheet.

Additionally, a person convicted and sentenced can move to modify or reduce the sentence imposed by the court but that motion has a time limit for filing. It must be filed within 60 days after the imposition of sentence or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and or sentence on an original appeal or 60 days after exhaustion of further appeals taken and ordered upon.

Then the most prevalent post-conviction motion in Florida is the 3.850, entitled Motions to Vacate, Set Aside or Correct Sentence. This motion can challenge a number of issues, including the constitutionality of the sentence, the court failing to have jurisdiction to enter the judgment or to impose the sentence, the sentence exceeding the maximum authorized by law, that the plea was involuntary or that the judgment is otherwise subject to collateral attack. There is a 2 year limitation for filing this motion with few exceptions but the 2 years generally begins after judgment and sentence or after an appellate court mandate affirming the conviction is entered. The most prevalent avenue that defendants use to attack their conviction 3.850 motion is claiming ineffectiveness of counsel. In that motion, unlike an appeal, you can point out all the errors that your trial lawyer committed during the trial, such as failing to object to inadmissible evidence, not doing a thorough evaluation and investigation of the case and presenting viable defenses, or not knowing specific facts that are important to the case. When those errors can be shown to have an effect on the outcome resulting in prejudice to the Defendant, then that person is entitled to get a reversal and remand of the case back to the trial court for a new trial. I’ve had success prevailing in many 3.850 motions.

The reality is that lawyers routinely make errors. You can always find errors committed in every case. But every error doesn’t rise to the level of reversal for purposes of a 3.850 motion. The defendant not only has to show that the errors were committed but they also have to show that the errors resulted in real prejudice to their case. That’s the difficult element to prove based upon the ruling in Strickland, because many times the judge may say, “Yes, the lawyer should have done it this way but as we look at it, the error was insignificant in the outcome or excusable error.” Or they may say that the evidence was overwhelming and if the lawyer had not committed that error the outcome wouldn’t have been any different. It didn’t result in any prejudice to them.

You need a lawyer that understands how to present this element of prejudice properly to the trial court when arguing a 3.850 motion to effectively convince the judge that those errors that are pointed out really did result in prejudice to the defendant and undermined the legitimacy of the verdict.