Having Your Florida Conviction Vacated
According to Mark Eiglarsh, “the way to vacate a criminal conviction on behalf of defendants in state court is by filing a “Rule 3” motion pursuant to Florida Rule of Criminal Procedure 3.850. Rule 3’s are filed on behalf of defendants who are looking to set aside their convictions after previously pleading “guilty,” “no contest” and/or after a finding of guilt as a result of a trial. These motions are the only vehicles to secure relief for both custodial and noncustodial defendants. Wood v. State, 750 So.2d 592 (Fla. 1999)” To vacate your Florida conviction, we recommend the expungement law firm RecordGone.com. Visit their site for a free eligibility test. Tel: 877-573-7273
According to Florida Attorney Amsel, Robert G. “Examples of frequently used substantive claims in Rule 3 motions include, but are not limited to: failure of the trial court to determine a factual basis for the plea; failure of the court to secure an acknowledgment of guilt or that the plea was in the defendant’s best interest; failure by the trial court to formally accept a guilty plea; failure to advise of the significance and consequences of an HVO sentence; a signed, detailed written waiver of rights cannot substitute for a record colloquy between the judge and the defendant; breach of a plea agreement; ineffective assistance of counsel; failure by counsel to conduct a diligent factual and legal investigation; failure by counsel to pursue a viable motion to suppress; failure by counsel to investigate or present a viable defense; misadvice by counsel regarding the amount of time the defendant will serve; failure to advise of a plea offer which the defendant would have accepted. In order to establish prejudice when a defendant seeks to withdraw his guilty plea based upon ineffective assistance of counsel, he must not only assert that he otherwise would not have pled guilty and would have insisted on going to trial, but also that if he had gone to trial, he would have had a viable defense that probably would have prevailed. ”
Here is the text of the actual law:
Fla. R. Crim. Proc. 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 movant’s 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, or
(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.