Appeals

Criminal Appeals, Motions to Withdraw a Plea and Post-Conviction Relief.

Even if you have been convicted of a crime, whether by entering a plea or going to trial, sometimes mistakes are made that can still be corrected. These mistakes may be made by defense attorneys, prosecutors and judges. Sometimes you find out about consequences you were not warned about. Depending on the facts of your case, you may be able to reverse your plea or trial verdict through a motion to withdraw your plea, a motion for post-conviction relief or an appeal.

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What is the Difference Between a Motion to Withdraw a Plea, Post-Conviction Relief and an Appeal.

Motion to Withdraw Plea

Under Fla. Rule of Criminal Procedure 3.170, (link) a Motion to Withdraw Plea must be filed either before you are sentenced or within a short period of time after. Usually, this motion applies when you entered your plea without fully understanding what was going on. A good example is when you enter a plea at your bond hearing shortly after your arrest while you are still in custody. Many people do so without understanding the full impact of doing so. If that happens to you, let us help you win back your right to contest the charges against you.

Post-Conviction Motions

A Post-Conviction Motion is governed by Fla. Rule of Criminal Procedure 3.850 (link). Although the grounds for filing this motion may be similar to a Motion to Withdraw Plea, this motion can be filed up to two (2) years after conviction, or even longer in some cases. It is important that the motion is filed by someone knowledgeable about the issues that can be raised. At Epstein & Robbins, we understand that a thorough investigation of both the facts of your case and the law are necessary for success. Just as each client is different, so too is each case.

Appeals

In both the case of the Motion to Withdraw Plea and a Post-Conviction Motion, the motions are reviewed by the same court that entered the conviction. An appeal is a proceeding in which your case is reviewed by a higher court. There are limits as to when and what can be appealed.

According to Rule 9.140(b)(1) of the Florida Rules of Appellate Procedure, a defendant can appeal:

  • A final judgment adjudicating guilt;
  • A final order withholding adjudication after a finding of guilt;
  • An order granting probation or community control, or both, whether or not guilt has been adjudicated;
  • Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.801, 3.850, 3.851, or 3.853;
  • An unlawful or illegal sentence;
  • A sentence, if the appeal is required or permitted by general law; or
  • As otherwise provided by general law.

If you entered a plea, your ability to appeal is even more limited.

Florida Rule of Appellate Procedure 9.140(b)(2) provides that a “defendant may not appeal from a guilty or nolo contendere plea except” in certain circumstances.

First, your attorney must know how to “preserve” your right to appeal. In order to properly preserve an issue for an appeal, your attorney must expressly do so.

If your attorney does not properly preserve the right to appeal, the only issues you can appeal are:

  • The lower court’s lack of subject matter jurisdiction;
  • A violation of the plea agreement, if you have filed a motion to withdraw plea;
  • An involuntary plea, if you have filed a motion to withdraw plea;
  • A sentencing error, if preserved; or
  • As otherwise provided by law.

In addition, in order to appeal after entering a plea, the error must be one that would completely change the outcome of the proceeding. This means you cannot appeal unless your case is one where the State would have to drop the charges if you win the appeal. For example, if the court improperly denied your attempt to keep the State from using a statement against you, but the State can prove the case without your statement, even if the court was wrong in its ruling, you cannot appeal.

An appeal must be filed within thirty (30) days of your sentence. Fla. R. App. P. 9.140(b)(3). If you miss the deadline, the consequences are harsh in Florida. It is important to contact us as soon after you are sentenced as possible.

Can I Win an Appeal?

Even if there was an error in your trial court proceedings, it does not necessarily mean that you can win on appeal.

Three concepts that have to be considered when evaluating the likelihood of success on appeal.

Identifying an Error – Experience and knowledge of criminal law, criminal rules, and rules of evidence are important in identifying if an error was made. It is important to choose an attorney who knows what to look for.

Preservation of Error – If an error was made in the trial court proceedings, it needs to have been “preserved.” That means the error must have been brought to the trial court’s attention, or else it is considered waived or forfeited, and except in the rarest of circumstances, an appellate court cannot provide relief. The only type of error that can be raised if there was no proper objection is fundamental error.

Harmless Error: You also must establish that the error impacted the outcome of the proceeding. If the appellate court decides that the error was insignificant, it can refuse to grant your appeal even if there was a mistake saying that the mistake was “harmless.” State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). (link).

Early representation by an experienced attorney on both the trial and appellate level is critical to protect your rights. At Epstein & Robbins we are experienced both at the trial court level and appellate level.

Examples of our successful criminal appeals include:

Skinner v. State, 31 So. 3d 940 (Fla. 1st DCA 2010)

Walker v. State, 55 So. 3d 718 (Fla. 1st DCA 2011)

Case v. State, 865 So. 2d 557 (Fla. 1st DCA 2003)

Taylor v. State, 848 So. 2d 410 (Fla. 1st DCA 2003)

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