Motion To Modify Sentence Florida? The 25 Correct Answer

Posted on February 16, 2022

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There are three main ways a person can seek to have a criminal conviction reversed in California. These are when the person:

There are also two ways in which a court can change a judgment on its own initiative. These are when the court:

invokes a penalty within 120 days of its imposition and invokes a penalty on the health of a prisoner.

1. What is a motion for resentencing?

A Request for Resentencing (“MFR”) is a legal motion that a defendant (or his/her attorney) submits to the court requesting the judge to alter or change his or her judgment.

An MFF is also known as a “petition to change a rate”.

In response to the petition, a judge may:

reject it

change a sentence

move a sentence, or

revoke a sentence.

The court will often decide to change a judgment if:

a typographical error was made (for example, the clerk entered the wrong jail term),

was imposed (e.g., the officer entered the wrong prison sentence), the sentence imposed was unlawful (e.g., not authorized under California law), or

(e.g. it was not allowed under California law) or the court made a miscarriage of justice (e.g. failed to consider certain evidence for the conviction).

An MFR can be submitted to the court at any time after the original judgment. This applies if there is a valid reason for doing so.

Please note that a convict may file a motion to change a sentence even if he/she is not a US citizen. In this case, the MFF is a type of post-conviction relief under immigration law that can eliminate the following risks:

deportation or

other bad consequences of immigration.

2. What is an appeal against a judgment?

An appeal of a sentence is an application by a prisoner to a higher court (i.e. a court of appeal) to change a sentence imposed by a lower court (i.e. the superior court, often referred to as the trial court).

Please note that an appeal is not a new process. The Court of Appeal does not:

retry a case

examine new evidence, or

take testimonies.

The sole function of the Court of Appeals is to review the proceedings that took place before the Trial Court to determine whether errors of law materially affected the rights of a party.

On appeal, the Court of Appeal can set aside a judgment if it finds two things. These are:

that the trial court erred in law and that the error “disadvantaged” a party.

“Prejudice” is reported when there is a reasonable likelihood that the error of law affected the outcome of the case.

3. What is a habeas corpus petition?

In California, anyone incarcerated can file a habeas corpus petition (HCP) to challenge their incarceration or the conditions under which they are serving their sentence.

A California habeas corpus is meant to be what the law calls an extraordinary remedy, meaning it can only be used in extreme and unusual circumstances.

As a general rule, a prisoner cannot apply for habeas corpus unless he has done what judges call “exhausting his remedies”. This means that a party must file all possible appeals of a California criminal complaint before bringing an HCP.

There are no strict time limits for filing a habeas corpus request, so long as it is filed while a party is in custody.

However, a prisoner cannot delay filing a habeas corpus request for too long. If he does, he must justify the delay in his application.

4. What is a judicial dismissal?

A court may, on its own behalf and without filing an MFR, decide to vacate a conviction under California Penal Code 1170(d). He can do so within 120 days of his sentence being imposed.

When a judge reverses a judgment, he reverses it and orders a new judgment, which cannot be higher than the original judgment.

In deciding whether to reverse a judgment, a judge may consider the following factors:

a prisoner’s disciplinary record,

prisoner’s rehabilitation card,

the risk of future violence by the inmate and

the interests of the judiciary.

5. What is a medical recall?

A court has the power to overturn a conviction based on a prisoner’s health concerns.

Under California Penal Code 1170(e), the court may decide to vacate a sentence if:

the prisoner is terminally ill and is expected to die within six months, and releasing the prisoner would not endanger public safety.

PC 1170(e) also allows a court to set aside a judgment if:

release of the prisoner would not endanger public safety, and the prisoner is permanently medically incapacitated (e.g., in a coma) and requires 24-hour full care.

6. Does California law recognize forms of alternative sentencing?

Yes. There are five common types of alternative convictions in California criminal cases. These are:

Regarding the latter, California law allows either:

“Alternative sentencing” is when an individual is completing their criminal conviction in the community (or home) and is not being held in a county or state prison.

Legal Notice:

Modifiers, as their name suggests, are words that modify. In particular, it is words that modify the meaning of their sentences. How do you indicate what someone looks like? With modifiers. How do you describe how an action is performed? With modifier. How do you communicate where, when or how something happened? You guessed it – with modifiers.

Add some sparkle to your writing Grammarly helps you communicate with confidence. Write with Grammarly

What is a modifier?

As we mentioned above, modifiers are words that modify the meaning of their sentences. Look at these two examples:

I went by train.

I took the earliest train into town.

The second sentence is more meaningful because of the modifiers it contains. Basically, the purpose of modifiers is to make sentences more descriptive or detailed. They can make the meaning of a sentence clearer, make a sentence more specific, or just make it more engaging. Both example sentences above are complete sentences, but only one provides additional details about the train journey. Depending on how this sentence fits into a larger conversation, these details could serve as foreshadowing, clarification, differentiation between this statement and another, or as a means of capturing the listener’s attention.

The second sentence contains both a modifier and a modifier phrase. While a modifier is a single word that changes the meaning of a sentence, a modifier phrase is a phrase that acts as a modifier. This is similar to how adjective phrases are phrases that function as adjectives, noun phrases are phrases that function as nouns, and other grammatical phrases function as specific parts of speech.

Some examples of single words that can be used as modifiers are:

First

Yellow

Outside

Flying

Modifier phrases, which can be adverbial or adjective phrases, are phrases like:

Under the car

A little slow

carefree

Sometimes clauses act as modifiers. Again, these are usually either adverbial or adjectival and can look like this:

When the sun rises

Who wore gray jeans

With excitement in her eyes

Here are a few examples of modifier phrases in action:

We waited until the last minute to voice our concerns.

The boy with the green sneakers kicked the ball.

And here are some examples of modifier sets that work in sets:

My sister won the competition as she had hoped.

The pedestrian, who had been waiting for fifteen minutes, did not step aside.

How are modifiers structured?

Usually, modifiers are placed right next to the noun they modify. Usually this means directly before or after the noun:

My lucky cat is always by my side.

The girls ordered a pizza without sauce.

This also applies if they change a verb or adjective:

He bought a light blue van.

I told the students to listen carefully to the lecture.

If a modifier is not in this position, it can make the sentence confusing to a reader or listener. This is called a misplaced modifier. Here are a few examples of misplaced modifiers:

They bought my sister a car they call Pumpkin.

We built them a house out of bricks.

Who is Pumpkin in the first sentence? Is it the sister or the car? In the second case, did they run out of stones? Did we build a house of bricks? Did they used to live in bricks?

Here are the same two sentences with their modifiers in the correct positions:

They bought my sister a car they call Pumpkin.

We built them a house out of bricks.

see the difference

Squinting and Dangling modifiers

One type of misplaced modifier is known as a dangling modifier. A dangling modifier is a modifier that does not change a specific word in the sentence. Here are a few examples:

After reading the book, the movie was great.

Before he left, a squirrel crossed the sidewalk.

You may be able to guess what these phrases are conveying, but they feel awkward and choppy. That’s because their modifiers don’t actually modify nouns. Clearer spellings of these phrases are:

After reading the book, I thought the movie was great.

Before I left, I watched a squirrel cross the sidewalk.

Dangling mods aren’t the only type of misplaced mods. Another type is known as a squint modifier. This type of modifier is unclear because it is placed so that it applies to the word before it as well as the word after. Check out these examples:

The children playing in the playground sometimes bought ice cream.

Emi hoped she could check her phone after class.

For these sentences, moving the modifier fixes any clarity issues:

Sometimes the children playing in the playground would buy ice cream.

The children who sometimes played in the playground bought ice cream.

When class was over, Emi hoped she could check her phone.

Emi hoped she could check her phone when class was over.

What types of modifiers are there?

As mentioned above, modifiers can be single words, phrases, or clauses. For a quick refresher on how to put these components together to form sentences, read our post on sentence structure.

An adjective phrase can act as a modifier. Adjective phrases are phrases that function as adjectives, meaning they describe nouns. You may hear or read that adjective clauses describe adjectives, and this is true in a pedantic sense – an adjective clause replaces a single adjective by describing what that single adjective would express. But the purpose of an adjective is to describe a noun, and an adjective phrase ultimately describes a noun by providing a more descriptive description than a single adjective could.

Check out these examples of adjective phrases that act as modifiers:

The building, being taller than the others, was prone to power outages.

Our generally aloof cat surprised us by accepting the new kitten.

Adjective clauses can also act as modifiers. Here are a few examples:

Kiara, a student who had recently been promoted, inquired about the school’s testing schedule.

The service that hosted our parties just increased their prices.

And of course single adjectives can also be used as modifiers:

I want to go to the retro arcade for my birthday.

They saw a yellow bird in the garden.

These include possessive pronouns:

The paint spattered all over my car.

An adverb is a word that modifies a verb, adjective, or other adverb. Of course, they are often used as modifiers:

She played her solo perfectly.

We are very experienced designers.

Adverbial phrases are very similar to adjective phrases in that they are phrases that perform the same functions as adverbs. And like adjective phrases, adverbial phrases are often used by writers to add life to descriptions:

She played her solo with perfect pitch.

We have years of experience as designers.

Authors also modify sentences with adverbial clauses like:

The band played like a high school garage band.

They hung their clothes as if the closet were a boutique.

Prepositional phrases can also be used as modifiers. Here are a few example sentences:

The woman with the blue hair bought four Romanescos.

All fish in the lake play a role in the ecosystem.

Boundary modifiers are modifiers that add detail by describing the boundaries that a noun, pronoun, or other subject faces in a sentence. Words commonly used as restrictive modifiers include:

Always

Only

Just

Easy

Nearly

In a sentence, a limiting modifier can look like this:

I just want to go on vacation.

Examples of modifiers

You use modifiers in your everyday speaking and writing without realizing it. Check out these examples to see how modifiers work in sentences:

We went to the beach on our vacation last year.

Mossimo always asks me how work is going.

Kristi grew tomatoes that were bigger than everyone else’s.

Before school starts, all teachers drink iced coffee.

We produced our film on a tight budget.

Frequently asked questions about modifiers

What is a modifier?

Modifiers are words that modify the meaning of their sentences by adding detail and clarifying facts or distinguishing between people, events, or objects.

How do modifiers work?

Modifiers work by adding descriptive language to sentences, either just before or just after the words they modify. For example, here’s how the word can change just one sentence:

We stopped once.

We only stopped once.

What types of modifiers are there?

The different types of modifiers include:

Under what circumstances will the judge change my sentence?

The judge will change your judgment in four circumstances

The judge who sentenced you has the power to vary your sentences for a number of reasons listed below:

1. Will the judge change my verdict because of an error in the verdict?

Yes. A court generally retains the power to correct an incorrect judgment. This means that if the judgment was brought about by a clerical error, the court can easily change the summary of the judgment to reflect the correct judgment.

So if a person was sentenced orally to 2 years and the clerk erroneously entered 20 years on the record, the court will amend the summary of the sentence to reflect the correct sentence.

2. Will the judge change an illegal judgment?

Absolutely. If the court imposes an unlawful sentence—or one that it had no authority under the law to impose—the court always retains jurisdiction to correct itself and finally convict the accused, even if that results in a greater sentence .

Thus, if the court has sentenced the defendant to a suspended sentence, if the law clearly states that a suspended sentence is not available for that particular crime, the court may resentence the defendant to any sentence permitted by law. Spelling errors often result in wrongful judgments, but sometimes the court errs in its statutory discretion and may sentence a defendant to a sentence not permitted by law.

3. Miscarriage of Justice

If the court convicts a defendant on the basis of a miscarriage of justice, the verdict cannot, in principle, be changed. At this point, a specific statutory process is required, unless the accused has not yet started his sentence.

For example, if the court fails to take into account a fact recorded in the records in reaching its sentencing that it could have used to improve the sentence (e.g. the fact of an earlier conviction), then the unimproved sentence is valid and the It will assumed that the court made the improvement at its reasonable discretion.

It doesn’t matter that if the court had taken the criminal record into account, the sentence would have been increased. As long as the court had the authority to cancel the revaluation, the revaluation is deemed to be canceled by the court. This is a miscarriage of justice and cannot be changed except by special legal process or when the accused has not yet served his sentence.

4. Reminder of Judgment (PC 1170(h))

Penal Code 1170(h) also allows a court to reverse a judgment within 120 days of the date of the judgment.

A recall differs from a rectification because a recall means that the original judgment was valid and legally correct, but the court may have changed its mind and wish to reconsider the circumstances.

The court will then issue a new verdict. It is important to note that this new sentence cannot be longer than the original sentence.

Why do you need a California criminal defense attorney to represent you in a sentence modification?

Conviction and imposition of a sentence are not necessarily the final decision in a criminal matter. The circumstances of your case may qualify you for a shorter prison sentence or lighter probation terms. At Wallin & Klarich, our experienced and professional lawyers can help you change your judgment and ensure your rights are protected.

With offices in Orange County, Los Angeles, Riverside, San Bernardino, Ventura, Victorville, West Covina, Pasadena, Sherman Oaks, Torrance, San Diego, Hemet and Temecula, our attorneys have more than 40 years of experience ensuring that our clients are satisfied that they are being treated fairly before the law and that they are receiving the best legal representation at every step of the process.

Call today at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation. We’re there when you call.

This information will help me to help my son achieve transformation. Thank you very much. All we can do is try. Many Thanks.”

…”

“This information is very good. My son was in prison for 5 years. I think he shouldn’t have been given so much time.

Sometimes the law that a defendant is accused of breaking determines the penalty. For example, a statute identifying a particular conduct as a misdemeanor might further state: “For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both.”

Other laws that define criminal offenses might designate a particular behavior as a misdemeanor or felony without specifying the penalty. In this situation, the punishment can be found in a separate statute that sets out the punishment for either that particular offense (or felony) or, in some states, all offenses.

However, punishment often varies depending on an accused’s background and the actual circumstances of a particular case. As a result, the actual sentence a defendant receives, if convicted, may be less than the maximum sentence provided by law. If you want to find out what your likely sentence will be if you are convicted, you can take the following steps:

request for a reduction in sentence

After conviction, the defendant must act quickly when making a request for a reduction or modification of the sentence. The request for a reduction or change in sentence will be made in accordance with Florida Rule of Criminal Procedure 3.800(c).

The request is often made in conjunction with other requests, including a request for correction of a wrongful judgment, a request for review, a request for a rehearing, or an appeal.

The motion to change or reduce the sentence prompts the trial court to reconsider its previous judgment in light of relevant facts, such as the possible sentence and the nature of the charges, as well as the impact the judgment will have on the defendant’s family and the costs of detention.

These motions appeal to the sentencing court’s discretion under rule 3.800(c) but do not allege any error or otherwise seek rectification of the judgment and judgment under Florida Rule of Criminal Procedure 3.800(b)(1).

Florida Rule of Criminal Procedure 3.800(c) permits the defendant to petition the trial court for a reduction or modification of sentence, but the petition must be filed within 60 days of the date of the sentencing. The request can also be made within 60 days of the return of the mandate for a direct appeal to a higher court.

The rules were recently changed to clarify the timeline for the court’s decision on a timely filed application. The rule now gives the court 90 days from the date the application was filed to make a decision, although this time may be extended by agreement of the parties or by the trial court.

Because of these strict time limits, you need an attorney who can help you file any applicable motions, quickly schedule the motion hearing, and be with you at the hearing so the court can provide additional information as to why this is the case it is in the interests of the judiciary to mitigate or amend the sentence.

Attorneys for a Tampa, FL motion for a reduced sentence

In many cases, it makes sense to file a request for a reduced or amended sentence, especially if the court imposes an unexpected sentence. The verdict could be unexpectedly harsh because it came after an open plea with no negotiated terms. These motions are also common in parole violations when a reason for trial is rare.

Keep in mind that after the petition is filed, the trial judge cannot reduce the sentence to one that could not have been imposed originally. Thus, the relief under rule 3.800(c) is not available where the trial judge has imposed the mandatory minimum sentence or has no discretion in sentencing.

After hearing the motion, the judge cannot impose a heavier sentence, as explained in the committee notes at Florida Rule of Criminal Procedure 3.800(c). For these reasons, there are few downsides to submitting the application.

A lawyer must act quickly to find additional information to present to the court. We can help you apply for a reduced sentence within 60 days of your conviction or enforcement. We can also make a request to extend the time the court has to decide the request, or reach an agreement with the prosecutor to extend the time limit.

With offices in Tampa, Hillsborough County and New Port Richey, Pasco County, FL, our attorneys represent clients throughout the greater Tampa Bay area. If you have been given a harsh sentence by the trial court and believe there is reason to reduce or change the sentence, contact an experienced criminal defense attorney at Sammis Law Firm to discuss your case.

Call (813) 250-0500.

When does the application for a reduction or change in sentence have to be made?

These motions must be filed with the trial court within 60 days of the sentence being imposed or receipt of the appeal mandate from the direct appeal. The court retains jurisdiction to hear a timely submitted request for mitigation under rule 3.800(c), even if the request is made within hours of the expiry of the sixty-day time frame.

In Bailey v. State, 136 So.3d 615, 616 (Fla. 2d DCA 2013), the court held that a “request under rule 3.800(c) is deemed to have been filed when it is entrusted to prison officials for further service or processing”. If an attorney makes the application, it is deemed to have been filed when it is received by the registry.

If the defendant does not file the motion within that 60-day period, the trial court loses jurisdiction forever to change or reduce the sentence.

Deadlines for Filing the 3.800(c) Application

For a reduction or modification of a sentence in a criminal proceeding, Florida Rule of Criminal Procedure 3.800(c) provides that the court may sua sponte or, upon request, reduce or modify any final sentence it has imposed within 60 days of the imposition” of the judgment and judgement.

The rule also allows the request for reduction or modification to be filed with the court within “60 days of receipt of a mandate issued by the Court of Appeals confirming the judgment and/or judgment on an original appeal.”

Finally, the request to change or reduce the penalty can be made within 60 days of either of the following events:

upon receipt by the court of a certified copy of an order of the Court of Appeals dismissing an original appeal of the judgment and/or sentence; or

after a higher court has issued an order of affirmation or an order dismissing the appeal and/or denying certiorari if further revision of the appeal has been requested.

If the Court’s review is based on the Respondent’s motion, the Trial Court shall have ninety (90) days from the date of filing of the motion, or such time period as the parties may agree or an extension of the Trial Court, to rule on the motion.

The request for a reduced sentence does not extend the deadline for filing the appeal

The Direct Penal Complaint is aimed at reviewing a judgment and judgment and must be filed within 30 days. If the appeal is not timely, it must be dismissed for lack of jurisdiction, as in Fla. R App p. 9.140(b)(3). Please note that a timely application for a reduced sentence does not extend the deadline for filing the appeal.

On the other hand, the deadline for extending the appeal period in Fla. R. App listed. p. 9.020(i). Under this rule, requests for correction of the error or otherwise rectification of the verdict and judgment under Florida Rule of Criminal Procedure 3.800(b)(1) may extend the time for appeal or stay the transfer.

The history of the rule for changing or reducing a sentence

Prior to the 1996 rule changes, these requests were filed under Florida Rule of Criminal Procedure 3.800(b), which is now Florida Rule of Criminal Procedure 3.800(c). In particular, a new subsection (b) (“Request for Correction of a Conviction Error”) was added in 1996 and the previous 3.800(b) was renumbered as subsection (c). Schlabach v. State, 37 So. 3d 230, 233 (flag 2010).

In particular, a new subsection (b) (“Request for Correction of a Conviction Error”) was added in 1996 and the previous 3.800(b) was renumbered as subsection (c).

In Schlabach v. Staat, 37 So. 3d 230, 240 (Fla. 2010), the court ruled that the trial court has the power to extend the 60-day period for a decision if the request for a reduced sentence is made within 60 days , provided the matter is resolved within a reasonable time .

An extension of time is required where the court is acting in the interest of justice to examine the records more carefully and exercise due care in conducting the harm reduction process and issuing an order within a reasonable time.

In this case, the Florida Supreme Court recognized that public policy requiring a decision within a “reasonable time” recognizes that the boundary is a matter of respecting the separation of powers. This policy recognizes that there will come a time when the “power of the judiciary to reduce a lawful sentence will end and be delegated to the executive.” ID. at 234.

The Florida Bar Association’s Criminal Procedure Rules Committee has addressed the issue of time limits under rule 3.800(c) and considered proposing to the Florida Supreme Court an amendment that would provide a reasonable time for a defendant to also file a motion under rule 3.800(c) as reasonable time for the trial court to rule on such requests or to reduce or modify the sentence sua sponte.

This policy of giving the court a reasonable time to decide on the application recognizes that “it is unrealistic to expect that a court will always be able to decide on a motion to amend the judgment within the short time available , unless a system is in place to bring the matter to the attention of the court without delay. The time limit is particularly onerous for the trial court if the application is made shortly before the end of the sixty days.” Schlabach v. Staat, 37 So. 3d 230, 239 (Fla. 2010).

For this reason, the Florida Supreme Court ruled that “the trial court does not lose jurisdiction solely because a hearing has not been scheduled and no order has been issued by the trial court within sixty days.

To rule that a court loses jurisdiction to change a judgment simply because the judge was unable to review the application and hold a hearing within the 60-day time limit does not meet the equitable intention of the Florida Rules of Criminal Proceedings…. so long as the trial court decides on the application within a reasonable time.”

This judgment balanced the interests of promoting justice and the efficient functioning of the judicial system. ID.

The Writ of Certiorari if the request for reduction is denied

It is well known that “[an] order denying a motion for reduced sentence under Florida Rule of Criminal Procedure 3.800(c) on the merits … is not a contestable order.” Clewis v. State, 715 So.2d 1129, 1129 ( Fla. 3d DCA 1998).

Because the request under rule 3.800(c) is at the discretion of a circuit court and there are few grounds for the court’s decision, no appeal is available. Nevertheless, the judgment is subject to the certiorari review “in an exceptional case”. Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996).

Florida law provides for several circumstances in which a party might choose to appeal a decision on a rule 3.800(c) request.

First, if the court grants a rule 3.800(c) request that reduces a sentence imposed on a hearing ground, then the order constitutes a contestable order and the State may appeal.

In State v. Jordan, 783 So.2d 1179, 1181 (Fla. 3d DCA 2001), the court found that under Florida Statutes Section 924.07, the state has the right to appeal two types of judgments:

a sentence that is illegal; and

a penalty imposed below the lowest allowable penalty established by Penal Code Chapter 921.

For this reason, under Florida Statute Section 924.07(1)(a), the state may appeal a reduced sentence, which constitutes a deportation penalty, issued by a trial court.

Second, the defendant may appeal the denial of the request for reduced sentence by filing a writ of immunity request. The request for an instrument is adequate if the trial court does not examine the substance of the request under rule 3.800(c) or otherwise makes a decision that results in a departure from the essential statutory requirements.

If the court improperly fails to reach a decision on the merits, the higher court may grant the request for an instrument, set aside the order dismissing the defendant’s request under rule 3.800(c) and issue pre-trial detention with instructions to Order the application to be examined on the merits. See Johnson v. State, 1D17-3432, 2018 WL 2399347, at *1 (Fla. 1st DCA, May 25, 2018).

The most common reason for seeking a certiorari review of the trial court’s denial of a motion for a reduction or modification of sentence occurs when the trial court has dismissed the motion as being out of time. As discussed above, the motion is not untimely if it is filed within sixty days of the date the court issued the direct appeal mandates.

Finding counsel for the rule 3.800(c) request.

Contact us to submit a penalty reduction request in a timely manner if the result was unexpected. At the hearing, which begins before the 60-day period is up, we can fight for a reduction in your sentence. We also file an extension request on behalf of the trial court if the trial court is unable to complete the request within the required time.

An attorney may request a hearing of the case to have the request heard within ninety days or such reasonable time thereafter. If the court is unable to decide on a timely application within the allotted time, the court should extend the time limit for deciding on the application sua sponte. To be on the safe side, the defense counsel should also apply for an extension of the time limit.

With offices in downtown Tampa in Hillsborough County, FL and in New Port Richey in Pasco County, FL, contact us to discuss your case. Call (813) 250-0500.

This article was last updated on Tuesday 11th May 2021.

The most common type of post-conviction legal protection is a direct appeal, which is filed after a defendant has been convicted following a court hearing. However, post-conviction relief may be granted through a motion for a new trial, which is usually filed before conviction, a direct appeal, a post-conviction allowable collateral attack, a state habeas corpus petition, or a federal habeas corpus petition . Each avenue of post-conviction legal protection has a different expected time frame and opportunity to make different legal arguments.

A request for a retrial is the first opportunity for a defendant to request a retrial. This usually has to be filed after a guilty verdict and before sentencing. The motion is generally limited to what kind of questions can be argued for a new trial. Two common arguments are jury misconduct and new evidence. For example, a defendant may learn that juries were looking at evidence that was not presented at trial, such as independent online research, props, outside influence, etc. Another case may be that the defendant learns of some undisclosed evidence or an unknown witness revealed itself. A new trial motion must not argue the invalidity of trial counsel or evidence admissible at trial.

A direct appeal is the primary post-conviction mechanism for challenging a criminal conviction after a court proceeding. The direct appeal arguments are all based on the trial record. Think of all pre-trials and trials where a judge has made a decision. These findings are all now up for analysis when presented in the appeal. Further procedural errors can be claimed if the argument can be formulated and presented with evidence from the procedural record. Arguments for breaches of expeditious procedure, evidence improperly admitted, and objections rebutted at trial are just a few of the issues that may be raised in direct appeals. Typically, a direct appeal is not a post-conviction appeal to challenge the ineffectiveness of trial counsel. This is because there may not be enough material in the record to establish that counsel was ineffective.

The post-conviction collateral attack is the mechanism for challenging legal issues not included in the trial logs. This is an opportunity for a defendant to present trial counsel’s ineffectiveness or new evidence uncovered following a guilty verdict. The new evidence could be relevant material not disclosed by prosecutors, a new witness, or post-conviction DNA test results. The ineffectiveness of trial counsel can be challenged, for example, by affidavits from unsubmitted witnesses who were known at trial time and had relevant testimony, and counsel who failed to cooperate with the accused or failed to consult an expert witness when one was critical . It is also worth noting that the pleading defendant has the opportunity to challenge the ineffectiveness of the counsel or the errors made during the sentencing.

The applicability of a state habeas corpus petition varies so greatly from state to state that it would be impossible to describe differences in this article. In short, it is another named type of post-conviction exoneration available to convicted defendants. In some states, a state habeas corpus request can only be filed after a defendant has served a final sentence but remains incarcerated. In some states, this form of relief is simply another name for a collateral attack.

Federal habeas corpus is another form of post-conviction relief. There are numerous statutes and statutes that apply to a federally convicted defendant when making a federal habeas corpus claim. An important rule of law to remember is that any legal argument presented in state courts must be based on federal constitutional law. If the state court has not been notified that the legal reasoning was based on federal law, the claim is barred from review. An example of a legal rule is the time frame within which a defendant must file the state petition of habeas. The time frame is one year after exhaustion of state legal protections. That means not within 365 days after the discharge was denied. The simplest explanation is that a defendant in state court can only have 365 days of dead time. A “dead time” calculation in this case means 365 days with nothing pending or properly filed in state court.

The Colossal Book of Criminal Citations contains legal references to thousands of cases for post-conviction relief in any post-conviction-after-conviction proceeding. Case references help, starting at the court proceeding level all the way up to the US Supreme Court. This book will assist convicted defendants in state or federal jurisdictions and is intended to assist the prospective prose defendant, prison attorney, or seasoned trial attorney.

The Colossal Book of Criminal Citations can be purchased at barkanresearch.com/buy-now

NOTE: The information contained herein should not be construed as legal advice. Every lawsuit is unique and every lawsuit is different. Always consult an attorney before filing any legal documents.

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March 30, 2020 / Author: NLPA

The criminal justice system is normally set in motion once a crime has been committed and prosecution follows. But while the law does its best to guide the conduct of criminal proceedings, human and cognitive error is almost inevitable.

Courts of first instance in particular are faced with tedious work and decisions are not always the best possible under the given circumstances. Consequently, the post-conviction motion allows a defendant who is dissatisfied with the court’s decision to file a motion to have the decision set aside.

Here at National Legal Professional Associates (NLPA), we firmly believe that even after a conviction has been reached and the appeals process has been exhausted, a defendant continues to have multiple options. The post-conviction motion is one such option available to a defendant.

With our extensive knowledge of criminal trials and legal remedies in the United States, we have successfully assisted defendants and their attorneys in finding a positive resolution to their trial. And on several occasions we have been able to use mechanisms such as the post-conviction request for them.

In this article, we explain what the Post-Conviction Application is and how a defendant can use it to seek relief in the US criminal justice system.

The post-conviction application in the US

The Post-Conviction Application is one of the post-conviction choices available to a person convicted of a felony in state court. In Alabama, the request is also known as a rule 32 request. It can be used when a defendant has exhausted the law’s standard appeals process or when the defendant wishes to appeal his conviction in a court of first instance.

The application is usually filed with the trial court and heard by the judge who presided over the trial or, in plea cases, rendered judgment. A post-conviction motion gives the trial court the opportunity to correct a conviction if it is unfair. It helps address unfair or wrongful convictions and prevents situations where innocent or wrongly convicted people end up in prison.

In summary, the post-conviction motion serves to overturn a conviction. If successful, there are two reliefs:

An appealable conviction is overturned. For example, where the court had no jurisdiction to even hear the offense or convict the accused, carefully exploited rule 32 will win liberty.

A wrongful conviction is overturned and the accused is given a new trial.

Where the post-conviction application applies

In order to file a post-conviction motion for conviction, the defendant must usually demonstrate that there was an erroneous factor making the conviction voidable. This may include evidence of any of the following:

That there should be a new trial, trial, or appeal as required by the US Constitution or State. The constitutional claims made must be substantiated with concrete facts.

That the court had no authority to hear the case or punish the accused.

There are material facts that have just been discovered that would lead to the overturning of the sentence. This may be the case if the new facts were not known to the defendant or his counsel at the time of sentencing or at the time of filing post-trial motions. In any event, it should be clear that even if reasonable care had been exercised, the facts would not have been locatable at those periods. In addition, the facts must not be merely supplementary to other known facts. Finally, it must be shown that the outcome would have been different if the facts had been known at trial or at sentencing.

The penalty imposed exceeds the minimum permitted by law or is otherwise not permitted by law.

The petitioner is in pre-trial detention at the end of his sentence.

Defendant failed to exercise its right of appeal within the time permitted by law and the failure was not due to fault.

In Jason Sharp v. State of Alabama (2014), the defendant filed a motion for exoneration of sentence under Rule 32 of the Alabama Code of Criminal Procedure. He sought relief from his unconstitutionally obtained conviction and death penalty for the felonies of first-degree rape manslaughter. The request for exoneration was based on the fact that the accused had been denied effective counsel throughout his murder trial. In particular, his attorney has not investigated or challenged the State’s case, nor has it adequately investigated or presented any evidence of mitigation. The attorney also failed to develop sound defense and harm reduction theories or to adequately present a case for imposing a life sentence without the possibility of parole. The court ruled that the application could be made.

How is the post-conviction application submitted?

Only a defendant can file a motion for reconviction. You should know that submitting the petition has tight limitations and often requires expert knowledge to get it right. The application is to be submitted:

Within 1 year of the issuance of the Criminal Court of Appeal Certificate of Judgment; or

Unless the conviction is one that has been appealed to the Criminal Court of Appeal, within 1 year of the last date that the deadline for filing an appeal would have passed.

The defendant begins the trial by petitioning the trial court for post-conviction relief and indicating whether he or she would like counsel to be appointed. Within 60 days, the appointed counsel or the defendant files the post-conviction relief motion. An incomplete application will be returned to the defendant by the court with an indication of how the application is inadequate.

A defendant then has 30 days to resubmit the petition, and failure to resubmit the petition will be dismissed by the court without notice. Thereafter, the state must respond to the petition within 45 days. The Respondent may file a Response within 15 days of receiving the Response.

However, there were exceptions to this deadline. In Maples v. Thomas, 565 U.S. (2012), although the defendant was late in filing his post-conviction motion, the US Supreme Court ruled that he was not at fault because his attorneys had withdrawn from the case and he was unaware of this fact. According to the court, the attorneys had “abandoned” Maples.

In Canyon v. State of Alabama (2015), the defendant filed a Rule 32 petition challenging his conviction of burglary, theft and possession of a counterfeit instrument and the 20-year sentence the court imposed. He argued that he had received double threats since the first and second degree theft charges against him were based on the same facts. As such, one of the convictions should be overturned.

He justified his lawsuit by alleging that his constitutional rights had been violated, in particular his right to multiple convictions for the same crime. The court, while acknowledging that his claims could have been pursued in court, found that his appeal for exceeding the one-year time limit was barred. However, on appeal, the Alabama Court of Criminal Appeals ruled that he could still appeal. Because it was about questions of double jeopardy and jurisdiction, which could be checked at any time.

We can assist you with your post-conviction application

Case law clearly shows that the post-conviction application can often involve complex procedural rules and numerous exceptions. To ensure you have the best chance of finding relief under the rule, it makes sense to work with highly qualified professionals.

At NLPA we can assist you and your attorney with the research you need to ensure a successful application. Contact us today to speak to our consultants.

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