Thursday, December 16, 2010

Criminal Appeal Time Limitations

Florida Appeals in Florida State Cases1(A judgment and sentence "become final" within meaning of rule that requires motions to be filed within two years after judgment and sentence become final, when direct review proceedings are concluded, and jurisdiction to entertain motions for post conviction relief returns to the trial court). A defendant may, however, attack his or her conviction and sentence at any time if the defendant alleges and can establish 1- newly discovered evidence that was not known to the defendant or the defendant’s attorney previously and could not be ascertained by the exercise of due diligence; 2- a fundamental constitutional right asserted was not established during the 2-year time limitation and has been found to apply retroactively; and 3- that the defendant retained an attorney to timely initiate the collateral proceeding attacking the conviction and sentence and the attorney, through neglect, failed to act. Fla. R. Crim. P. 3.850(b)(1)-(3).Generally speaking, under Florida law a defendant has 30-days to file a direct appeal of his or her criminal conviction and sentence. Fla. R. App. P. 9.140(b)(3). A defendant may also file a collateral proceeding trying to set aside his or her conviction based on, among other things, ineffective assistance of counsel, within 2-years of the conclusion of any direct appeal in a non-capital case, and 1-year in a capital case. Fla. R. Crim. P. 3.850(b). The time period begins to run after the Florida Supreme Court has either ruled on any appeal, or in non-capital cases, has refused to consider an appeal, or after the 30-day time period has expired to appeal to the Florida Supreme Court from any adverse decision of the District Court of Appeals that considered the direct appeal, including any motions for rehearing.

For more information visit H. Manuel Hernandez, P.A.

H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.

For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553  

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