Criminal Defense Lawyers in Tampa
Call for a FREE Consultation!

Ineffective Assistance of Counsel

Tampa Criminal Defense Attorneys

Florida’s Post Conviction Relief Motions

Florida law provides for several different types of post-conviction motions. Generally, there are two different types of post-conviction relief motions:

  1. Motion to Correct, Reduce, or Modify a Sentence pursuant to Florida Rule of Criminal Procedure 3.800; and
  2. Motion to Vacate, Set Aside, or Correct a sentence pursuant to Florida Rule of Criminal Procedure 3.850 or 3.851 (for death penalty cases).

Although the rules for postconviction motions under Rules 3.850 and 3.851 read similarly, a defendant should hire or consult with an experienced post-conviction lawyer and make sure that the rule imposed is the correct one that is being applied.

The Florida Supreme Court created a model form for postconviction relief motions filed pursuant to Rule 3.850, but there is no model form for Rule 3.800 or 3.801 motions. The model form for a motion for postconviction relief under Rule 3.850 is found at Rule 3.987, Florida Rules of Criminal Procedure.

Correct An Illegal Sentence: Florida Rule of Criminal Procedure 3.800.

Generally, a court may at any time correct (1) an illegal sentence (a sentence that is longer than that allowed by law), or (2) a sentencing scoresheet error. To succeed on a Rule 3.800(a) motion, a defendant must be able to show that the court records demonstrate the defendant is entitled to relief. A Rule 3.800(a) motion should be petitioned to the court that issued the judgment and sentence from which the defendant seeks relief. A defendant, however, cannot seek relief under Rule 3.800(a) while his/her direct appeal is pending.

Motion to Correct Illegal Sentence

Under Florida Rules of Criminal Procedure § 3.800, a defendant can file this motion if they have been sentenced to an illegal sentence that is obviously illegal. There is no limit for when this motion can be filed, and the trial court judge is permitted to correct an illegal sentence at any time. An example of an illegal sentence is if the trial court exceeded the maximum statutory sentencing requirements for the alleged crime.

The defendant’s motion must specifically describe the error in his/her sentence and provide a proposed correction to his/her sentence.

The State may file a response to that motion within 15 days, and that response must either admit or deny the alleged sentencing error. The State may also file a motion to correct a sentence under Rule 3.800(b), but only if the correction of the sentencing error would benefit the defendant or correct a typographical error. A defendant may file a motion for rehearing of the denial of a Rule 3.800(b) motion within 15 days of the order disposing of the motion or within 15 days of the expiration of the 60-day time period for filing an order if no order disposing of the motion is filed.

Motion to Set Aside or Vacate Judgment or Sentence

This motion can be filed up to two years after your sentence has become final. This motion can be filed for different reasons (as listed in Florida Rules of Criminal Procedure 3.850), but the most likely reason is for Ineffective Assistance of Counsel.

For example, if your criminal defense lawyer failed to object when law enforcement officer testified at trial that you invoked your right to an attorney and you were prejudiced at trial because of your attorney’s lack of attention, you can file this post-conviction motion to have your judgment overturned.

Ineffective Assistance of Counsel: Florida Rule of Criminal Procedure 3.850.

Any defendant who has been sentenced (except those sentenced to death) may file a motion to vacate, set aside, or correct a sentence under Rule 3.850 if the defendant has been convicted of a crime following a trial or plea of guilty or nolo contendere.

How to get relief under Rule 3.850

The grounds for relief under Rule 3.850 include:

  1. The judgment or the sentence was imposed in violation of the United States or Florida constitutions or laws;
  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.

See Fla. R. Crim. P. 3.850(a)(1)-(6)

Why work with us and why we are the best choice?

Award-Winning Firm

We are known to “go to the mats” for our clients. That carries extraordinary weight and respect with prosecutors and other lawyers.

Experience Counts

Both Daniel J. Fernandez and Martin J. Hernandez have more than 500 trials between them.

5 Star Rating

We are consistently rated among the top criminal defense lawyers by our peers, major independent legal authorities, and others in the community.

Direct Attorney Access

We will provide you with a free consultation where you will speak directly with one of our attorneys. Call us at 813-229-5353.

We Fight for You

Our practice consists solely of trial attorneys and we dedicate ourselves to securing the best result for each and every client who enlists our services.

What is the Process for Seeking an Ineffective Assistance of Counsel Claim?

A post-conviction proceeding involves filing and litigating a motion seeking relief after a criminal conviction. It is a ‘do-over’ or a means of introducing new evidence. Most requests for post-conviction relief involve claims of ineffective assistance of counsel, claims that prosecutorial misconduct led to a wrongful conviction, allegations that the sentence was illegal, or a request for DNA testing.

One of the most commonly raised grounds in a motion for postconviction relief under Florida Rule of Criminal Procedure 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:

  1. that counsel’s performance was deficient and
  2. that the deficient performance prejudiced the defense.

See Strickland v. Washington, 466 U.S. 668, 687 (1984).

How Do I Prove that My Attorney Was Ineffective?

First, you cannot argue my attorney was ineffective because you were convicted. You must show that the defendant suffered prejudice as a result of his/her attorney’s acts or failure to act, a defendant must show that there is a reasonable probability that the outcome of his/her case would have been different if it had not been for counsel’s deficient performance.

Can a Defendant Still Allege Ineffective Assistance if there was a Plea?

Yes, a Defendant may still allege Ineffective Assistance of Counsel if there was an entry of a guilty or no contest plea. If the defendant entered a guilty plea, he/she must allege that but for the errors of counsel, they would not have pleaded, but would have instead proceeded to trial. See Grosvenor v. State, 874 So. 2d 1176, 1179 (Fla. 2004).

Is a Defendant Entitled to Attorney for a 3.850?

A defendant is not entitled to a court-appointed attorney for the filing of a Rule 3.850 Motion for Post-Conviction Relief. The Defendant is also not necessarily entitled to a free copy of the trial transcript for the purposes of preparing his/her motion. The defendant may, however, file a motion in the postconviction court seeking the appointment of counsel.

When a Defendant files a motion to appoint counsel in the postconviction court, the motion 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).

Why is it important to have a criminal defense attorney in a 3.850?

A criminal defense attorney can help you file the Rule 3.850 motion. The attorney can also help you prepare a proper motion and can litigate the issues after the court schedules an evidentiary hearing.

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 the request that he/she does not have the education or the sophistication to proceed pro se in those matters.

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).

An evidentiary hearing must be held on an initial 3.850 motion whenever the movant makes a facially sufficient claim that requires a factual determination. Because a court’s decision whether to grant an evidentiary hearing on a rule 3.850 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. If the Rule 3.850 motion is not successful after the evidentiary hearing, then the trial court’s rulings can often be appealed to a higher court.

If the Rule 3.850 motion is not successful after the evidentiary hearing, then the trial court’s rulings can often be appealed to a higher court.

How Does a Defendant get a Hearing on a 3.850?

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 the 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).

Is a Defendant allowed to file more than one motion for post-conviction relief?

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). These are very rare 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).

What Happens of the Post-Conviction Motion is Granted?

If the post-conviction motion is granted, then the judge can grant the following types of relief:

  1. order a new trial;
  2. modify the sentence; or
  3. grant other relief as necessary.

Usually, you start from the beginning again and begin defending the case again.

When must I file a 3.850 motion?

In most cases, the post-conviction motion must be filed within two years of the date the conviction became final. A conviction is ‘final’ after all appeals are exhausted.

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 the judgment and sentence became final. In a case in which a defendant has received a death sentence, the defendant must file the 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 30 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: (1) the facts on which the claim for relief is based were unknown to the defendant or his/her attorney and the defendant could not have discovered those facts if the defendant had reasonably and actively tried to do so; (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. See Fla. R. Crim. P. 3.850(b)(1)-(3), and 3.851(d)(2)(A)-(C). A ‘fundamental constitutional right’ is one that is given to a defendant under the United States or Florida constitutions.

Examples of Post-Convictions Issues in Florida

The post-conviction motion is filed with the trial court and typically addresses issues outside of the four corners of the trial transcripts. Issues that can be raised in a post-conviction motion can include a showing that:

  1. the defendant had ineffective assistance of counsel at trial;
  2. the plea was coerced;
  3. the sentence was illegal;
  4. DNA testing results would show that the defendant is innocent;
  5. the prosecutor committed misconduct or presented false testimony or evidence;
  6. a witness committed perjury;
  7. evidence of juror misconduct; or
  8. a showing that the law changed after the verdict.

Ineffective Assistance of Counsel Attorney in Tampa, Hillsborough County, Florida

It’s important to contact a defense lawyer as soon as you can. The more time you wait, the more time you give the prosecution to get ready. Additionally, valuable time-sensitive evidence and testimony must be gathered. We will provide you with a free consultation where you will speak directly with one of our attorneys.

The Fernandez & Hernandez law office is designed to swiftly resolve any difficulties that you may face. Our experienced attorneys continue to strive upon improving and bettering the situations of our clients. Contact partner Daniel J. Fernandez or Martin Hernandez today so we can fight for you and protect your rights. Call (813) 229-5353.

Start Planning Your Defense

Fill out the form below and we will be in touch with you to schedule your FREE consultation.

Contact Us

3002 W Kennedy Blvd.
Tampa, Florida 33609

Business hours:
7 Days a Week / 24 Hours a Day

Phone number:
(813) 229-5353

From Our Blog

Recent Reviews

Daniel J. Fernandez, Esq.
Based on 288 reviews
powered by Google
Chris Martin
Chris Martin
19:37 13 May 20
You are only as good as the team you have working for you. He has a huge asset in his paralegal Austin. He helped me... all the way through the process and kept me informed with all updates. Also thank you Danny for going to all of my court appearances and getting my probation terminated early. Thank Youread more
winston thompson
winston thompson
17:45 04 May 20
I recently hired Mr Fernandez and his Firm to handle a family Case . I was very pleased with their service. It was... strategic and comprehensive in the methods he applied . I would highly recommend him and his firm. To anyone need competent legal servicesread more
Ronald Barton
Ronald Barton
00:38 31 Mar 20
I would recommend this firm to anybody they were very professional and friendly at the same time. I flew in from out of... state and contacted them to represent my son and they took right to the chase. The results was very satisfying. Don’t waste your time with anyone else they are the best!!!!read more
Gina Love
Gina Love
19:12 26 Mar 20
Praise God for Daniel J Fernandez!!! He got my charges dropped completely and I was facing a felony!!! This man works... nationwide and if you ever need legal help he is your guy!! Austin was also incredible at keeping me calm, cool and collected the while way through!! God bless this team of amazing individuals!! Thank you thank you thank you!!! Forever grateful I can move on with my life and not have to look back!read more
15:43 12 Feb 20
Daniel Fernandez is by far THE BEST ATTORNEY I've ever hired. He's straight to the point, he worked magic in the... courtroom on 7 year sentence. He made what I thought was the impossible happen!! Daniel was very consistent on contacting me about any new important updates. I've hired attorneys in the past and from now on I will recommend him to everyone and only hire him from here on out if any situation occurs. He GETS THE JOB DONE!!!! Austin (his paralegal) was just as diligent and I'm grateful to have hired them and had them work on our more
Gennetza Hernandez
Gennetza Hernandez
16:44 30 Jan 20
I was very concerned about my case coming from being a victim from a abuser. After meeting with me Fernandez I felt... very comfortable all my question were answered and assure me that there a was solution on my case. I felt very confident that my case would be resolved. I highly recommend not only mr. Fernandez but his staff Marie and Austin for an excellent more
juan millan
juan millan
16:36 24 Jan 20
This process has been wonderful with Daniel Fernandez and Austin. Thanks to them and the team it has been speedy and... produced the best outcome for myself and my family. Expected to be finished with the process in about 6 months, only took about more
Amy Brennan
Amy Brennan
19:49 13 Jan 20
Mr. Daniel Fernandez and his staff treated me like a family member from the moment I walked into his office. He and... his staff are knowledgeable, diligent, attentive, and effective. They immediately went to work and didn't stop until they obtained the absolute best results for my case. From the moment Danny became my attorney, I felt at ease and knew that I was being represented by the best there is. I'm eternally grateful for all he and his staff have done for me. He is a true professional and an amazing advocate for your legal more
Irene Meadows
Irene Meadows
21:56 11 Dec 19
If you need an attorney who is compassionate, knowledgeable and will be there every step of the way for you and your... family during a difficult and challenging time in your life, you have made the right decision with Daniel Fernandez and his staff. Mr. Daniel Fernandez and his staff treat you like a member of their family. My husband and I would highly recommend you contact the law office of Daniel J. Fernandez. You will be glad you more
A Google User
A Google User
14:27 11 Dec 19
Great Experience, attorney Daniel J Fernandez was extremely kind, and explained everything in great detail. The staff... at the office was excellent! Great experience would recommend the attorney to more
Luella Nelson
Luella Nelson
23:30 10 Dec 19
Attorney Daniel Fernandez My daughter was facing a few issues that was going to effect her for a very long time. I did... not know which direction to turn or what to do. I googled 5 star attorney's and Mr. Fernandez's name displayed. I called his office and spoke to his paralegal Austin. He was very kind, understanding and gave me peace of mind just by speaking to me. I then met Mr. Fernandez shortly thereafter. This Attorney is very kind, compassionate, understanding and truly cares about his clients. His proven results were simply phenomenal. He basically saved my daughter from going away for a very long time instead she is going to receive some medical treatment and soon released with a short period of supervision. Afterwards Mr. Fernandez sat down with me and explained the out come and also has a plan for her moving forward. I know that each situation is different however this attorney not only has proven results he cares and looks for cures for his clients. If your in need of an attorney for any situation I suggest that you call Attorney Daniel Fernandez. I assure you that you will not be disappointed. -----Original Message-----read more
Joe Blanco
Joe Blanco
01:48 07 Dec 19
Daniel Fernandez is by far the best criminal defense attorney in the Tampa Bay area. I have used Mr. Fernandez for... several years to help my son with several issues he has faced. He compassionate, informative, and reliable. If you are in need of a criminal defense lawyer I highly recommend you to hire Mr. Fernandezread more
Anjeanette Blanco
Anjeanette Blanco
22:37 06 Dec 19
Daniel J. Fernandez has been my lawyer for 25 years and he is amazing! He is always available when needed and goes... above beyond. His entire office staff is always friendly and helpful. I highly recommend Mr. more
Nicole Tarantelli
Nicole Tarantelli
17:36 02 Dec 19
I am so pleased with the experience I had with everyone in their office. The service was excellent! Everyone was kind... and patient. I mostly dealt with Austin. He did everything he said and always returned my calls the same day. I am incredibly grateful for all the hard work!read more
Cheryl Stinson
Cheryl Stinson
14:41 22 Nov 19
Daniel Fernandez represented us in a violation of probation in dade city'. He did a great job. Judge was going to... sentence my friend to one year in jail .Mr. Fernandez argued for 60 days and hot the court down to 70 days .thank you for your help Mr.Fernandezread more
gilbert Lozada
gilbert Lozada
18:23 01 Nov 19
Great work Mr. Daniel J Fernandez he is very knowledgeable as a defense attorney I will Highly recommended his services... to anyone.Thank youread more
stephanie santiago
stephanie santiago
18:13 21 Oct 19
Im so pleased with Daniel Fernandez. He was able to get my husbands case to go better than what we thought it was.... Thank you so muchread more
Jose Rodriguez
Jose Rodriguez
13:39 25 Sep 19
I don't have enough words to describe how amazing the experience with attorney Fernandez was. I could not have asked... for better services. Attorney Fernandez was very professional throughout the legal process which resulted in a positive outcome. Thank you again attorney Fernandez for giving my family and me peace of more
Genesis Padilla
Genesis Padilla
04:22 12 Sep 19
Mr. Fernandez was absolutely amazing with our family’s case. Very genuine and intelligent. Austin was a pleasure to... work with as well. We had a great experience overall, we were blown away by what he was able to accomplish so more
Alex Gomez
Alex Gomez
15:13 14 Aug 19
I'm very satisfied with the services provided from Mr. Daniel J Fernandez. I was in a bad situation and contacted his... firm. They were very professional and informative. They're very knowledgeable in the law and great at what they do. I would recommend them to everyone I know without hesitation. Mr. Fernandez and his firm are the real deal. Once again thank more
D Serano
D Serano
01:21 18 Jul 19
Daniel Fernandez is an amazing lawyer! I have used a few times for a family member and I highly recommend! He knows... his stuff, hes aggressive, a fighter, not afraid to try any case that comes his way!! He is honest and let’s you know what to expect from the moment you hire and until the case in closed!read more
Next Reviews

If you or a loved one needs a criminal defense attorney, call us for a free consultation to discuss the case. 7 DAYS A WEEK / 24 HOURS A DAY

Experience Matters! Our firm has tried over 500 cases and has 35+ years combined experience.

Contact Info

3002 W Kennedy Blvd. Tampa, Florida 33609

Business hours:
7 Days a Week / 24 Hours a Day

Phone number:
(813) 229-5353

© Fernandez & Hernandez LLC – 2019. All rights reserved. The material provided in this web site is intended to be used as general information and not as legal advice. You should schedule an appointment with an attorney for professional advice regarding your particular case. You should avoid sending any sensitive, confidential or damaging information via e-mail since mail on the Internet is not secure. We strongly recommend that you contact either Martin J. Hernandez or Daniel J. Fernandez as soon as possible if you are seeking legal representation. Our early intervention is crucial. We have emergency assistance available 7 days a week, every day of the year.