21-b-2 Determining Whether to File a Rule 3.850 Motion or a Habeas Petition

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

21-B-2. Determining Whether to File a Rule 3.850 Motion or a Habeas Petition

(a) Before Trial

(i) Extradition

In Florida, you may be held for a maximum of 30 days before you can be extradited to another state.⁴⁹ If you have been held for over 30 days awaiting extradition, you may bring a habeas corpus petition in Florida. Extradition issues may be brought to the court pursuant to a writ of habeas corpus, and not according to the procedures laid out in Rule 3.850.⁵⁰

(ii) Bail

You may ask for habeas relief on the ground that you were denied bail⁵¹ or that your bail is excessive.⁵² Some courts require petitioners to prove they have tried to make bail, and will not consider a habeas petition if the evidence indicates that you could not post bail in any amount.⁵³ If the court finds in your favor, it may grant relief or lower your bail. If you have already been convicted, the court will not review any petition requesting bail because you cannot get bail after you are convicted. To challenge your bail proceedings or pretrial detainment conditions, you need not exhaust Rule 3.850 procedures. Instead, you may directly file a habeas petition.⁵⁴

(iii) Delay

If no formal charges are filed against you within 21 days, you may be entitled to release on a Rule 3.850 motion. You may raise a habeas claim after exhausting Rule 3.850 procedures.⁵⁵ If you are released or charged before the court rules on your habeas petition, your petition becomes moot (no longer relevant) and the court will not consider it.⁵⁶ You may also petition the court for a writ of habeas corpus if you request a preliminary hearing and are not granted one in a timely manner.

(iv) Search Warrant and Probable Cause

If you were arrested pursuant to a search warrant, you may file a pretrial motion under Rule 3.850 challenging the validity of the search warrant.⁵⁷ You may also challenge your arrest on the ground that there is no probable cause to believe that you committed the crime with which you are charged.⁵⁸ Probable cause is a low standard to prove and courts are not likely to grant habeas relief on this ground.⁵⁹ When deciding your petition, the court will not evaluate conflicting testimony in order to make determinations of fact.⁶⁰ The court will leave this determination for trial. After exhausting Rule 3.850 procedures, you may raise these same issues in a habeas petition.

(b) After Your Conviction

(i) Confinement Beyond Sentence

You are also entitled to Rule 3.850 relief if your sentence is void (not valid). A court will consider a sentence void if it was not issued properly based on what is required by the law. For example, if the judgment fails to state an offense, does not state clearly that you have been found guilty, or lists a charge not on the indictment, your conviction and sentence might be void.⁶¹ If you are denied relief under Rule 3.850, you may then raise this claim in a habeas corpus proceeding.

(ii) Fundamental Rights

You may attack prior criminal proceedings under Rule 3.850 by asserting a violation of your fundamental (most basic) constitutional rights. If you are denied relief, you may raise these issues in a petition for habeas relief. Although there is no comprehensive list of rights that Florida courts have declared "fundamental," courts have consistently allowed petitioners to claim certain rights in habeas petitions. These include the right to a trial by jury,⁶² the right to due process,⁶³ the right not to be convicted twice of the same charge (also called the right against double jeopardy),⁶⁴ the right to appeal,⁶⁵ and the right to a speedy trial.⁶⁶ You may also claim the right to be free from cruel and unusual punishment. That is, you may challenge your prison conditions by alleging they are so unbearable as to be considered cruel and unusual punishment.⁶⁷

(iii) New or Void Law

You may also petition the court under Rule 3.850 on the ground that the statute under which you were prosecuted is unconstitutional.⁶⁸ It is very rare for courts to find a statute unconstitutional. If the statute you were prosecuted under is declared unconstitutional, you are entitled to immediate release.

(e) Ineffective Counsel

You have the right to effective assistance of counsel to help you with your appeal. You may petition the court according to the process laid out in Rule 3.850 if you:

(1) are indigent (poor),

(2) requested counsel on appeal, and

(3) were denied that right to counsel.⁶⁹ If you did not make your need for counsel known, the court is not likely to consider your petition. You may also petition the court for habeas relief if your counsel was ineffective.⁷⁰ Proving ineffective assistance of counsel is very difficult. The court will only consider whether the attorney's mistakes were so great that they were grossly (obviously) outside the range of acceptable performance and hindered (prevented) your appeal and undermined its result.⁷¹ You must show there is a good chance that if your counsel had not made these mistakes, the outcome on appeal would have been different.⁷² You may not use a habeas corpus proceeding to allege ineffective assistance of counsel at trial; that issue may only be raised on appeal.⁷³ Finally, you do not need to exhaust Rule 3.850 procedures if you are challenging the ineffectiveness of appellate counsel (the lawyer who helped with your appeal). In those circumstances, you may directly file a habeas petition.⁷⁴

(f) New Evidence

If there is newly discovered evidence in your case, you may attack/challenge the judgment against you according to Rule 3.850 procedures.⁷⁵ If you later file a habeas petition, be aware that the evidence must be very strong.⁷⁶ It must be so strong that, if admitted, it would probably produce an acquittal on retrial.⁷⁷ In addition, you must be able to prove that the information was not known by you or your attorney and could not have been discovered by you or your attorney at time of trial.⁷⁸ The court will be required to hold an evidentiary hearing on your claim for post-conviction relief, unless the evidence is plainly refuted by the record.⁷⁹ You may also file for post-conviction relief if you can show that the prosecutor failed to turn over exculpatory evidence (evidence tending to support your innocence).⁸⁰ To establish a claim that the prosecutor failed to turn over such evidence, you must be able to show that:

(7) The state possessed evidence favorable to you;

(8) You did not possess nor could have obtained such evidence with reasonable effort;

(9) The prosecution suppressed (did not turn over) the evidence; and

(10) There is a reasonable probability the case would have come out differently if the evidence had been disclosed.⁸¹

(g) Probation or Parole

Florida courts have held that a Rule 3.850 motion, followed by a habeas petition if unsuccessful, is the correct procedure by which you can challenge errors in parole revocation proceedings and orders of the Florida Probation and Parole Commission.⁸² You may also file a habeas petition to challenge the Parole Commission's determinations of presumptive parole release dates,⁸³ or if you are...