View Full Version : How to write an appeal for state court in Florida


evclark1
07-01-2007, 05:34 AM
I live in the state of Florida and I want to appeal my plea agreement, because I believe I recieve ineffective counsel. I've already found three cases to cite. I just need to know how to write it out. I spoke with an appeal attorney and he said that although my case seems simple it could run into 10 thousand dollars and suggest that I write the appeal case myself by filling an 3.850. Can any advise me where I might find examples for writing this appeal.

Thanks,

Evclark1

Crone
07-01-2007, 05:51 AM
are you talking format or content?

Perhaps the attorney you spoke with would be willing to mentor you through the process. In other words, you write the appeal and have him/her review it. Maybe that same attorney would have a 'model' appeal that you could use for formatting, content, etc. Also, see if there is a public appellate defender in your area (check with the Bar Association) and see if they can't help you get the ball rolling. Good luck!!

Oh, and welcome to PTO!

Patrickj
07-02-2007, 07:04 AM
I live in the state of Florida and I want to appeal my plea agreement, because I believe I recieve ineffective counsel. I've already found three cases to cite. I just need to know how to write it out. I spoke with an appeal attorney and he said that although my case seems simple it could run into 10 thousand dollars and suggest that I write the appeal case myself by filling an 3.850. Can any advise me where I might find examples for writing this appeal.

Thanks,

Evclark1


Evclark:
Upon reading FLorida Rules of Criminal Procedure XVll Post Conviction Relief RULE 3.850. MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE I am going to put most of this rule here for you to read. I think you would be better to read this rule and the rest of the rules that pertain to post conviction relief in the Flordia rules of Criminal Procediure. Here is a link to the FLordia Rules of Criminal Procedure
http://dlis.dos.state.fl.us/barm/ccr/rules_of_criminal_procedure.pdf (http://dlis.dos.state.fl.us/barm/ccr/rules_of_criminal_procedure.pdf)
That way you can read and reaearch other rules of procedure as you need them. I will see if I can find some examples of this type of motion.
You state that you have found three cases that would help you in this matter before useing these cases besure that they are still good cases


RULE 3.850. MOTION TO VACATE, SET ASIDE,

OR CORRECT SENTENCE

(a)
Grounds for Motion. The following grounds may

be claims for relief from judgment or release from
custody by a person who has been tried and found
guilty or has entered a plea of guilty or nolo contendere
before a court established by the laws of Florida:
(1) The judgment was entered or sentence was
imposed in violation of the Constitution or laws of the
United States or the State of Florida.
(2) The court did not have jurisdiction to enter the
judgment.
(3) The court did not have jurisdiction to impose
the sentence.
(4) The sentence exceeded the maximum authorized
by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject
to collateral attack.

(b)
Time Limitations. A motion to vacate a sentence


that exceeds the limits provided by law may be filed at
any time. No other motion shall be filed or considered
pursuant to this rule if filed more than 2 years after the
judgment and sentence become final in a noncapital
case or more than 1 year after the judgment and
sentence become final in a capital case in which a death
sentence has been imposed unless it alleges that
(1) the facts on which the claim is predicated
were unknown to the movant or the movantís attorney
and could not have been ascertained by the
exercise of due diligence, or
(2) the fundamental constitutional right
asserted was not established within the period
provided for herein and has been held to apply
retroactively.
(3) the defendant retained counsel to timely
file a 3.850 motion and counsel, through neglect,
failed to file the motion.
(c)

Contents of Motion. The motion shall be


under oath and include:
(1) the judgment or sentence under attack and
the court which rendered the same;
(2) whether there was an appeal from the judgment
or sentence and the disposition thereof;
(3) whether a previous postconviction motion
has been filed, and if so, how many;
(4) 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;
(5) the nature of the relief sought; and
(6) a brief statement of the facts (and other
conditions) relied on in support of the motion.
This rule does not authorize relief based on
grounds that could have or should have been
raised at trial and, if properly preserved, on direct
appeal of the judgment and sentence.

(d)
Procedure; Evidentiary Hearing; Disposition.


On filing of a rule 3.850 motion, the clerk

shall forward the motion and file to the court. If the
motion, files, and records in the case conclusively

show that the movant is entitled to no relief, the motion

shall be denied without a hearing. In those instances
when the denial is not predicated on the legal
insufficiency of the motion on its face, a copy of that
portion of the files and records that conclusively
shows that the movant is entitled to no relief shall be
attached to the order. Unless the motion, files, and
records of the case conclusively show that the movant
is entitled to no relief, the court shall order the state
attorney to file an answer or other pleading within the
period of time fixed by the court or to take such other
action as the judge deems appropriate. The answer
shall respond to the allegations of the motion. In
addition it shall state whether the movant has used any
other available state remedies including any other
postconviction motion under this rule. The answer
shall also state whether an evidentiary hearing was
accorded the movant. If the motion has not been
denied at a previous stage in the proceedings, the
judge, after the answer is filed, shall determine whether
an evidentiary hearing is required. If an evidentiary
hearing is not required, the judge shall make
appropriate disposition of the motion. If an evidentiary
hearing is required, the court shall grant a prompt
hearing thereon and shall cause notice thereof to be
served on the state attorney, determine the issues, and
make findings of fact and conclusions of law with
respect thereto. If the court finds that the judgment was
rendered without jurisdiction, that the sentence
imposed was not authorized by law or is otherwise
open to collateral attack, or that there has been such a
denial or infringement of the constitutional rights of the
movant as to render the judgment vulnerable to
collateral attack, the court shall vacate and set aside the
judgment and shall discharge or resentence the
movant, grant a new trial, or correct the sentence as
may appear appropriate.
(e)

Movantís Presence Not Required. A court may


entertain and determine the motion without requiring
the production of the movant at the hearing.
(f)

Successive Motions. A second or successive


motion may be dismissed if the judge finds that it fails
to allege new or different grounds for relief and the
prior determination was on the merits or, if new and
different grounds are alleged, the judge finds that the
failure of the movant or the attorney to assert those
grounds in a prior motion constituted an abuse of
the procedure governed by these rules.
(g)

Appeal; Rehearing; Service on Movant. An


appeal may be taken to the appropriate appellate
court from the order entered on the motion as from
a final judgment on application for writ of habeas
corpus. All orders denying motions for postconviction
relief shall include a statement that the movant
has the right to appeal within 30 days of the
rendition of the order. A petitioner may seek a
belated appeal upon the allegation that the
petitioner timely requested counsel to appeal the
order denying petitionerís motion for
postconviction relief and counsel, through neglect,
failed to do so. The movant may file a motion for
rehearing of any order denying a motion under this
rule within 15 days of the date of service of the
order. The clerk of the court shall promptly serve
on the movant a copy of any order denying a
motion for postconviction relief or denying a
motion for rehearing noting thereon the date of
service by an appropriate certificate of service.

Patrickj
07-02-2007, 07:16 AM
Here is the link to the 2007 Florida Rules of Criminal Procedure
http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/303Crim2007.pdf?OpenElement
Better to use the curent rules

evclark1
07-02-2007, 11:04 AM
Patrickj, thanks for the information. I check a week ago and the public defenders office and they stated that the Public Aappellate defender is appointed by the judge. Because I had a co-defendant in my case I was appointeda a private attorney. Is there a way to get the public defender to take my case?

Thanks,

Evclark1

evclark1
07-02-2007, 11:13 AM
Crone2004, thanks for the information. I check a week ago and the public defenders office and they stated that the Public appellate defender is appointed by the judge. Because I had a co-defendant in my case I was appointeda a private attorney. Is there a way to get the public defender to take my case?

Thanks,

Evclark1

Patrickj
07-02-2007, 11:24 AM
Patrickj, thanks for the information. I check a week ago and the public defenders office and they stated that the Public Aappellate defender is appointed by the judge. Because I had a co-defendant in my case I was appointeda a private attorney. Is there a way to get the public defender to take my case?

Thanks,

Evclark1


Evclark:

There are twenty judical circuit courts in the state of Florida each circuit is broken down to represent certain counties. Each circuit has a public appeallt attorney section within the circuit Look for your county and what circuit you would be in the contact the office of the public defender in thath circuit and see what the steps are in having counsel appointed for you. Even though you were appointed private counsel on your orginal charges you still should be able to get some type of counsel appointed for you either public or private. I am not 100% sure how this may work because I haven't fully read all of the procedure as of yet.

Crone
07-02-2007, 11:49 AM
Crone2004, thanks for the information. I check a week ago and the public defenders office and they stated that the Public appellate defender is appointed by the judge. Because I had a co-defendant in my case I was appointeda a private attorney. Is there a way to get the public defender to take my case?

Thanks,

Evclark1
Having the appellate public defender's office represent both you and your co-defendant might constitute a conflict of interest which is why you were appointed a private attorney. I do not believe that you could get a public defender and, frankly, most people would be jumping up and down with excitement not to have a public defender. Having said that, I know a number of public defenders in the area I live in that are sung high praises for the work they do on behalf of the accused (by the accused).

If you don't think your private attorney is acting in your best interest then you can ask the court to appoint another (private) attorney for you.

Keep in mind, however, that your attorney can only work with the facts as they are. If, for instance, a person is found with a bloody knife in his hand standing over a body, it would be hard for any attorney to argue that that didn't occur.

Good luck!

evclark1
07-02-2007, 03:54 PM
I plead guilty and took a plea agreement 6 monthts ago. But recently I discovered that someone who also plead guilty and took a plea agreement appealed thier case and won thier appeal 9 months after thier plea. While doing some research on my case,I discovered that the police neglected to get the names of those who they say were the victims. I asked my attorney if I took the case to trial did we have a chance to having the rest of the tickets tossed out. I mena it seems logical to me, If there isn't any to say that I sold them a ticket. How can the tickets be used as evidence against. Don't I have the right to confron my accussers? But in this case they only have to witness to say that I sold them the tickets. Which is for $10 dollars that consitutes a misdemeanor not a felony.