(2) the court did not have jurisdiction to enter the judgment against the defendant,
(3) the court did not have jurisdiction to sentence the defendant,
(4) the sentence exceeded the maximum allowed by law,
(5) the plea was not voluntary, and
(6) the judgment or sentence is otherwise subject to collateral attack.
One of the most commonly raised grounds in a motion for postconviction relief under rule 3.850 is that a defendant received ineffective assistance of counsel at trial. In order to sufficiently plead a claim of ineffective assistance of counsel, a defendant must allege both:
(2) that the deficient performance prejudiced the defense.
Like rule 3.801 motions, every rule 3.850 motion must include an oath. This means that a defendant must swear that the facts stated in that motion are true and correct and sign the motion before filing it in the postconviction court. Another person may not sign the oath on behalf of the defendant unless the defendant is physically unable to sign. See Piper v. State, 21 So. 3d 902, 903 n.1 (Fla. 2d DCA 2009). A defendant does not, however, have to attach any affidavits or sworn testimony to his/her motion. If the defendant fails to include the oath in the motion, it will be dismissed as facially insufficient. See Almodovar v. State, 74 So. 3d 1140, 1140 (Fla. 2d DCA 2011).
A defendant is not necessarily entitled to a free copy of his/her trial transcript for the purposes of preparing his/her motion. Nor is a defendant entitled to court-appointed counsel for the filing of a rule 3.850 motion for postconviction relief. The defendant may file a motion in the postconviction court seeking the appointment of counsel. A motion to appoint counsel in the postconviction court and on appeal from the order denying postconviction relief should address the adversary nature of the case, its complexity, the need for an evidentiary hearing, or the need for substantial legal research. See Fla. R. Crim. P. 3.850(f)(7). If the court orders an evidentiary hearing on the defendant’s motion, the defendant may request court-appointed counsel if the issues are complicated or may require expert testimony, and should state in his/her request that he/she does not have the education or the sophistication to proceed pro se in those matters. However, a defendant is absolutely entitled to appointment of postconviction counsel for a death penalty case. See Fla. R. Crim. P. 3.851(b).
Like rule 3.800, if a defendant is arguing under rule 3.850 that he/she received a sentence that is greater than that provided by law, a defendant may file the motion for postconviction relief under rule 3.850 at any time. See Fla. R. Crim. P. 3.850(b). Otherwise, in a non-death-penalty case, a defendant must file his/her motion within 2 years of when his/her judgment and sentence became final. In a case in which a defendant has received a death sentence, the defendant must file his/her motion under rule 3.851 within 1 year of when the judgment and sentence became final. See Fla. R. Crim. P. 3.850(b) and 3.851(d). A sentence becomes final thirty days after rendition in the postconviction court, or, when an appeal is taken, on the date that the appellate court issues its mandate.
The only exceptions to the 1- or 2-year deadlines for filing a motion for postconviction relief (that is not based on an illegal sentence) is to truthfully state in the motion that:
(2) the fundamental constitutional right the defendant asserts in the motion was not established within the filing window for the motion and the right has been held to apply retroactively; or
(3) the defendant hired an attorney to file a rule 3.850 motion for him/her, but the attorney did not file the motion on time.
Like a rule 3.800(a) motion, a defendant may not file a rule 3.850 or 3.851 motion for postconviction relief while his/her direct appeal is still pending. A defendant must wait until his/her direct appeal has been decided and the mandate has issued before filing a postconviction motion. The 1- or 2-year deadline for filing a motion does not begin to run until the judgment and sentence become final, which occurs after the direct appeal has been concluded. If a direct appeal was not filed, the judgment and sentence become final 30 days after the filing of the judgment and sentence in the postconviction court clerk’s office.
Once a defendant files a motion for postconviction relief under rule 3.850 the postconviction court clerk must send the defendant’s motion and file to the postconviction court. See Fla. R. Crim. P. 3.850(f). If the motion, the files, and the records in the case show without doubt that the defendant is not entitled to relief, the postconviction court may deny the motion without a hearing. See Fla. R. Crim. P. 3.850(f)(5).
If the postconviction court’s decision that the defendant is not entitled to relief is based on the contents of the record, and not the legal sufficiency of the motion, the postconviction court must attach to its order denying the motion those portions of the record that show that the defendant is not entitled to relief. See Fla. R. Crim. P. 3.850(d). If the motion, files, and record do not conclusively show that the defendant is not entitled to relief, the postconviction court is required to order the state attorney to respond to the motion. See Fla. R. Crim. P. 3.850(f)(6).
If the postconviction court has not otherwise denied the defendant’s motion, after the state attorney files its response, the postconviction court must determine whether the defendant is entitled to an evidentiary hearing on his/her motion. If it determines that an evidentiary hearing is not required, the postconviction court must rule on the defendant’s motion. If it determines that an evidentiary hearing is required, the postconviction court must promptly set a hearing and serve notice of the hearing on all parties and make findings of fact and conclusions of law on the motion. See Fla. R. Crim. P. 3.850(f)(8).
A defendant is not necessarily entitled to be present at the hearing on his/her motion. See Fla. R. Crim. P. 3.850(g). The postconviction court has the authority and power to resolve his/her motion at a hearing without the defendant being at that hearing. See Fla. R. Crim. P. 3.850(g).
A defendant may be permitted to file a second or multiple motions for postconviction relief under rules 3.850 and 3.851. But that is true only if each and every motion after the first is timely and raises new grounds for relief not previously asserted and decided on the merits in any prior motion under rules 3.850 or 3.851. See Fla. R. Crim. P. 3.850(h). Because there is a strong preference to resolve all postconviction claims in one motion, any motion filed after the disposition of the first motion should explain why the defendant failed to assert the new grounds for relief in the first motion. If a defendant files a second motion for postconviction relief that states a ground that the defendant raised in his/her first motion for postconviction relief, the second motion will be dismissed as successive. See Fla. R. Crim. P. 3.850(h). The postconviction court may also dismiss his/her second motion (or other motions following the first motion), if the lower tribunal determines that the defendant’s motion for postconviction relief raises new grounds that could have been raised in an earlier motion and that the filing of the second motion was an abuse of postconviction procedures. See Fla. R. Crim. P. 3.850(h).
If the postconviction court denies the defendant’s rule 3.850 motion, the defendant may appeal that denial within 30 days of the date the order is filed in the postconviction court clerk's office. See Fla. R. Crim. P. 3.850(k). If the defendant hired an attorney to file an appeal for him/her, but the attorney did not file the appeal on time, the defendant may file a motion to file a belated appeal after the 30-day deadline has passed, but the defendant must allege in that motion that he/she instructed his/her attorney to appeal and that his/her attorney did not do so. See Fla. R. Crim. P. 3.850(l) and Fla. R. App. P. 9.141(c).
A defendant may also file a motion for rehearing of any order denying the motion for postconviction relief under rule 3.850. See Fla. R. Crim. P. 3.850(j). The motion for rehearing must be filed within 15 days of the date of the service of the order denying the defendant’s motion. See Fla. R. Crim. P. 3.850(i). The postconviction court must rule on the motion for rehearing within 15 days of the State's response, if there is one, but not less than 40 days from the date of the order disposing of the postconviction motion. Fla. R. Crim. P. 3.850(j). The defendant has 30 days from the date the order on a timely motion for rehearing is rendered to file an appeal. Fla. R. App. P. 9.020(i). The postconviction court clerk must promptly serve the defendant with a copy of any order denying his/her motion for postconviction relief or denying his/her motion for rehearing. See Fla. R. Crim. P. 3.850(g). The clerk must also note on the order the date that the clerk served the defendant with that order. See Fla. R. Crim. P. 3.850(i).
