Defendant was arrested for Driving While License Suspended (DWLSR) and sentenced to probation. Without the assistance of counsel, Defendant entered a plea of No Contest on the charge of DWLSR, a second-degree misdemeanor. The Defendant’s plea was accepted and he was sentenced to a period of twelve months probation. Police located an active warrant for the Defendant on a Violation of Probation Charge and arrested him at his residence. He was transported to jail and held without bond.
Motion for Post Conviction Relief
A motion for post conviction relief can be filed by an attorney for either a misdemeanor or a felony when:
- The sentence of the crime was in violation of the laws of the United States, the State of Florida, or the Constitution
- The court didn’t have the proper jurisdiction to enter the judgment
- The court didn’t have the jurisdiction to impose the sentence
- Material facts were not previously presented in the case
- The sentence exceeded the maximum that was set by law
- The plea was involuntary
- DNA testing has been done to prove the allegations are incorrect
- Trial counsel did not do their job as they should have
- The judgment is subject to collateral attack
Typically, a motion for post conviction relief must be filed within two years after the offender has had the charge finalized. Exceptions to this would include counsel failing to file motion after the defendant has hired counsel to do so, the defendant has no access to the Florida courts system due to jail time and has no counsel, or new evidence clears the victim of the charge.
The Process of Motion for Post Conviction Relief
After the defendant has the counsel file in the court where judgment was made, they will sign an oath for the factual merits of the motion. A trial court will then analyze this, determining if the claims are sufficient. If they are, they will be passed along to the state, and the state will be given a time frame to respond by. Once the state has responded, then a final order will be entered stating the claims to be insufficient or an evidentiary hearing will be scheduled.
At the evidentiary hearing, the defendant will need to prove their allegations. The state can call the trial counsel as a witness, who will then testify to the claims. The state will often require the defendant to testify.
RESULT: After reviewing our Client’s plea, we recognized his twelve-month probation exceeded the six months maximum period of probation allowed under Florida Law for a second-degree misdemeanor. The Attorney filed a Motion for Post Conviction Relief on behalf of our Client. As a result of our efforts, the Court dismissed the Violation of Probation warrant. The original sentence, which our attorneys discovered was illegal, was set aside; our Client was resentenced to Adjudication Withheld and time served on the DWLSR 1st offense.