- Dorothy Naumann
- Indian River County, FL
The direct appeal in Florida criminal cases
A defendant who is convicted of a crime in Florida circuit court has the right to file a direct appeal to the District Court of Appeal. The notice of appeal must be filed within thirty days of the rendition of the sentence under Florida Rule of Appellate Procedure 9.140(b)(3). Failure to file within thirty days generally forfeits the right to a direct appeal.
A direct appeal reviews the record of the trial court proceedings for legal error. The appellate court does not hear new evidence or testimony. The court reviews the trial record, the parties’ written briefs, and may hear oral argument before issuing a written decision.
Grounds for appeal in Florida criminal cases
Common grounds for appeal in Florida criminal cases include improper admission or exclusion of evidence, erroneous jury instructions, insufficient evidence to support the verdict, prosecutorial misconduct, and sentencing errors. Not all errors at trial support reversal. The appellate court applies either a harmless error or fundamental error analysis depending on whether the issue was preserved at trial.
To preserve an issue for appeal, a party generally must raise a contemporaneous objection at trial under Florida Rule of Evidence 90.104. Failure to object waives the issue for purposes of direct appeal, though a fundamental error, one that reaches down into the validity of the trial itself, may be raised for the first time on appeal.
Post-conviction relief under Florida Rule 3.850
After a direct appeal is exhausted, a defendant may seek post-conviction relief by filing a motion under Florida Rule of Criminal Procedure 3.850. A Rule 3.850 motion must generally be filed within two years of when the judgment and sentence become final. The motion raises claims that could not have been raised on direct appeal, most commonly ineffective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, a defendant must establish both that counsel’s performance was deficient and that the deficiency prejudiced the outcome of the proceedings, under the standard established in Strickland v. Washington, 466 U.S. 668 (1984).
Habeas corpus and other post-conviction remedies
Florida Rule of Criminal Procedure 3.850 is the primary vehicle for post-conviction relief in Florida state courts. Other remedies include petitions for writ of habeas corpus, which may be filed when the defendant is in custody and the Rule 3.850 motion is not available or adequate.
After Florida state post-conviction remedies are exhausted, a defendant may file a petition for writ of habeas corpus in federal court under 28 U.S.C. 2254, raising claims that a federal constitutional right was violated. Federal habeas review is subject to strict procedural requirements and deference standards established by the Antiterrorism and Effective Death Penalty Act of 1996.
Frequently asked questions
How long do you have to appeal a criminal conviction in Florida?
Under Florida Rule of Appellate Procedure 9.140(b)(3), the notice of appeal must be filed within thirty days of the rendition of the sentence. Missing this deadline generally forfeits the right to a direct appeal.
What is a Rule 3.850 motion in Florida?
A Florida Rule of Criminal Procedure 3.850 motion is a post-conviction motion filed after a direct appeal is exhausted. It raises claims not available on direct appeal, most commonly ineffective assistance of counsel. It must generally be filed within two years of when the conviction becomes final.
What happens if a Florida criminal appeal is successful?
If the District Court of Appeal finds reversible error, it may reverse the conviction and remand for a new trial, reverse and remand for resentencing, or in some cases reverse and direct the entry of a judgment of acquittal.
If you have been charged with a criminal offense, you have the right to an attorney. Contact the Law Office of Dorothy Naumann at 772-WIN-CASE to speak with a criminal defense lawyer.