Criminal Appeals
Similar to other professions, it is crucial to hire someone who specializes in criminal appeals. We would not hire a pediatrician to perform our heart surgery; much in the same way, the law requires specialization.
Criminal appeals are heard by the district courts of appeal of Florida. There are five district courts in Florida, and each case is considered by a three-judge panel.
The method of bringing the facts and law of the case before the court is much different than in the trial court. In the appellate court, we write a document called an appellate brief. In the brief, we provide the facts that took place in the lower court, then write an argument based on intense and comprehensive research of case law, statutes, court rules, and the constitutions of Florida and the United States.
Our arguments in criminal appeals are limited to what is called the record on appeal. The record on appeal, usually referred to as just "the record," consists of every document filed in the lower court and the transcripts from trial and sometimes hearings that were held.
Our arguments are also limited to what we call preserved errors. An error occurs when the trial court makes a ruling that we disagree with. Our position is that the trial court committed an error when that happens. During trial, when the court errs, it is the job of trial counsel to preserve the error by objecting. Other ways that the court can err are by denying defense motions, granting state motions, or entering other rulings--the list is really endless. When motions are filed, the motion itself usually preserves an error for the appellate court to review.
Once we file our first brief, called an initial brief, the State then sometimes files an answer brief. We then have the opportunity to file a reply if it is necessary, but most of the time it is not.
Drafting the initial brief is a lengthy process that requires us to review the entire record on appeal, then conduct countless hours of legal research based on those facts. Many attorneys are not experienced with such comprehensive legal research, so it is important to choose an attorney who is equipped with the tools needed for the job.
The criminal appellate process itself is also very complicated. Not knowing what to do and when to do it can result in an appeal being dismissed without any briefs being filed. This can be catastrophic to the case!
If you or your loved one was recently convicted, CONTACT US NOW!!! We are always happy to explain your options and tell you what we can do to help!
You only have 30 days to initiate the appeal process, so don't wait! We look forward to helping!
Postconviction Relief
A conviction and sentence are not the end of a case. Mistakes are almost always made during a criminal case. Our experienced legal team has devoted years developing the expertise to identify and present claims to both Florida state and federal courts. We can put our experience to work for you or your loved one today. Don't go it alone. We have one goal and that is to shorten or end the time our clients spend incarcerated.
WHAT NOW?
It is often difficult and frustrating trying to determine where to begin fighting an unjust conviction. There a many procedural rules that must be navigated to ensure a claim is properly considered by the courts. These rules contain deadlines that must be met or the opportunity to present claims may be lost. Strict timelines exist for appeals, post-conviction motions and federal petitions. We will ensure that your claims for relief are timely submitted for review by the court. And we will help you decide what to file, where to file and when to file.
RISK IN SELF-REPRESENTATION
There may be a risk in representing oneself. Our office is trained in the rules of evidence, the rules of procedure, and the law. Our experience and training ensure that we will not miss the small things--the things that sometimes make or break a case. We find the mistakes, the instances where evidence was admitted when it should not have been, where evidence was not suppressed where it should have been, and so many more instances of the abuse of procedure. As a self-represented litigant, one may find his- or herself without the adequate knowledge to properly present appellate and/or postconviction claims. Rely on us to help!
Rule 3.850 Motions for Postconviction Relief
After the initial appeal in a criminal case is unsuccessful, the next step in the process is to file a motion for postconviction relief under rule 3.850 of the Florida Criminal Rules of Procedure.
Rather than focusing on any errors made by the trial court--which is what the initial appeal is for--these motions examine trial counsel's performance. Did your lawyer perform as expected? Did he advocate for the case like he should have? Did he interview witnesses, review the discovery, visit the crime scene? Did he file motions and challenge the State's case?
Sometimes, these failures cause trial counsel's performance to violate the Sixth Amendment right to counsel. When this happens, we file a motion to vacate the judgment and sentence called a Motion for Postconviction Relief.
The initial motion that we file sets forth the facts of the claim. If the State and court are not able to refute our claim, we then have a hearing on the motion. At that hearing, it is our job to demonstrate that the facts we provided are true, and that they warrant relief in this particular case.
Many times, our loved ones who are incarcerated are surrounded by very knowlegable "inmate law clerks." These law clerks are sometimes very good at fighting cases, but more often they are not adequately trained, prepared, or experienced. They also cannot help with the hearing.
In our experience, we have learned that the most important aspect of filing these motions is the hearing. We may file a simple 10-page motion that turns into a full-day hearing with witnesses and evidence. We may use investigators to find evidence and witnesses that were overlooked by counsel's inadequacies, and we may even discover new evidence contained in the police or state attorney's file that should have been turned over.
Every case is different.
When we take a case, we go through the record with a fine-tooth comb, looking for anything and everything that should have mattered to begin with. We search out new evidence and look for additional witnesses. We sometimes visit the crime scene to get a better understanding of the case. And most important: we communicate with our clients.
If you or a loved one believe that you had poor representation at a criminal trial, CONTACT US NOW!!!
There are time limits for filing these motions, so don't wait to reach out to us. Often we receive calls from desperate family members who called just too late. Don't let that happen to you!
We look forward to helping!
Federal Habeas Corpus
Federal courts hear two types of habeas cases: state cases brought to federal court (section 2254) and federal postconviction cases (section 2255). We will discuss each below:
State Cases
State federal habeas corpus proceedings are brought under 28 U.S.C. s. 2254. We commonly refer to these as "2254s."
These proceedings are often times the last opportunity for a person convicted in state court to obtain relief. These are usually filed after the affirmance--or denial--of the appeal from the denial of the rule 3.850 motion.
In order for someone to be eligible for relief under 2254, their sentence must:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Further, in order to prevail, the claims must be exhausted, meaning that it was fully litigated in the state courts. There are exceptions to this rule when a person filed his or her rule 3.850 motion pro se or when his or her rule 3.850 attorney was ineffective, so it is important to have an experienced eye review the case for any possible claims that may have been overlooked.
Federal Cases
Federal cases are filed under 28 U.S.C. s. 2255. We call these (you guessed it) "2255s." These are the federal equivalent of the rule 3.850 motion. We file these for people convicted in the federal courts, and we usually file them following the affirmance (or, denial) of the first federal appeal.
Like rule 3.850 motions, 2255s generally focus on the performance of trial counsel. When trial counsel is ineffective in violation of the United States Constitution, and when that ineffectiveness affects the outcome of the case, a 2255 petitioner is entitled to have his or her sentence vacated.
Federal proceedings are very complex. The structuring of the petitions, the order in which we file related motions and/or memoranda, and the overall direction of the case is much different from anything filed in the state courts. The federal courts are much more strict with procedures and rules, and they expect attorneys to be aware of the procedures and rules.
The methods we use in federal habeas cases are determined on a case-by-case basis. There is usually three times as much for us to review as there is in a state case, and the litigation can sometimes take on more of a trial path, where we file subpoenas and present evidence.
It is very important to find an attorney who can meet the stringent standards of federal litigation when choosing someone to handle a federal habeas case. If you would like further advice on your case or a loved one's case, call us now!
As in all other proceedings, there is a very strict deadline for filing federal habeas petitions. CONTACT US NOW to make sure that deadline does not pass!