Difference between Post-Conviction Motion and Motion to Correct Sentencing

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Despite the plethora of protections built into the Constitution, justice in America isn’t always perfect. Sadly, sometimes people are convicted of crimes they didn’t commit or receive sentences that are inappropriate for the crime they were convicted of. Thankfully, the same system that attempts to prevent this from happening in the first place also offers remedies when situations like this arise.

In the state of Florida, there are several legal remedies that you might take, depending on the circumstances of your case. All of these remedies involve making a motion with the court system. But just because they all involve a motion, that doesn’t mean they are all the same. There is a big difference between a post-conviction motion and a motion to correct sentencing.

If you have been convicted of a crime in Florida and believe that justice wasn’t fulfilled, you should consult with a criminal defense attorney to get answers to your important questions, like “What is a post-conviction motion?” and “How do I modify a sentence in Florida?”

Call Panella Law Firm at 407-602-6559 to get all of your questions answered.

How Do I Modify a Sentence in Florida?

Just because you have been convicted of a crime, that doesn’t necessarily mean you want to contest that conviction. For example, you may have made a plea agreement to get a lesser sentence or to get charges dropped. By contesting the conviction, you would nullify your agreement and put yourself at risk for harsher punishment or more charges.

Occasionally, the court will assign a sentence inconsistent with the state’s laws or your agreement with the prosecutor. This can happen when:

  • Your sentence doesn’t properly reflect the time served.
  • You are consecutively sentenced when you should have been sentenced concurrently.
  • A judge used discretion to increase a sentence when discretion wasn’t permitted.
  • A judge ignored the maximum sentencing guidelines.
  • There is a typographical error that results in a different sentence than the one applied by the court.

If any of these things occur, you will want to know “How do I modify a sentence in Florida?” The good news is that Florida Rule of Criminal Procedure 3.800 allows people convicted of crimes to petition the courts to modify an incorrect or illegal sentence.

Typically, a motion to correct sentencing can be made any time after an illegal sentence is imposed or incorrect calculations have been made regarding the length of your sentence or time served. In this motion, you must affirmatively allege that you are entitled to relief from the court and provide direct evidence supported by court records. While your case is pending appeal, you are ineligible to file this type of motion.

Furthermore, there is no limit to the number of times you can file a motion to correct sentencing as long as you allege new grounds with each new motion. If you discover new mistakes or if the courts make new incorrect calculations, you can file a new motion to request further correction of a sentence that has already been previously modified. Finally, if your motion is dismissed or denied, you also have the right to appeal that decision within 30 days of that decision.

What Is a Post-Conviction Motion?

A post-conviction motion is an opportunity for the court to correct a miscarriage of justice. Typically, this type of petition is made after any appeals have been completed. This motion is made with the same court where your case was originally tried. In a post-conviction motion, you can present new evidence and request relief based on factors like the following:

  • Violation of constitutional rights during or before trial
  • Jurisdictional issues with the court where the trial was held
  • Discovery of new material facts that would dramatically change the outcome of the case
  • Ineffective assistance of counsel at trial
  • Misconduct by the prosecutor, including violations of discovery rules
  • Judicial misconduct.

Depending on the claims being made, you can request several different remedies. Some of the most common remedies are:

  • A new trial
  • Dismissal of charges
  • Reduction of sentence
  • Voiding of the verdict.

While these motions are typically filed with the state, you have the option to file federal petitions as well. However, you must exhaust all state options before you can file a federal post-conviction motion. Furthermore, whether you are filing at the state level or federally, the laws regarding these types of petitions are extremely complex and usually time-consuming. Thankfully, the courts are required to judge the merits of the first post-conviction motion that you file within their jurisdiction.

What Is the Difference Between Post-Conviction Motion and Motion to Correct Sentencing?

The main difference between these types of petitions is whether you accept the results of the trial. If you wish to contest the outcome of your trial, you will make a post-conviction motion after exhausting your appeal options with the help of an experienced appeal lawyer. However, if you simply disagree with how your sentencing has been applied, you will file a motion to correct sentencing. Your trial lawyer can provide valuable advice and representation throughout these processes to protect your rights and present the strongest possible case

These types of motions differ in another very important way. As long as you are alleging new discrepancies, the court is required to hear every motion to correct the sentencing that you present before it. However, the same isn’t true of a post-conviction motion.

Only the first motion must be entertained by the court. After that, the court can decide not to examine the facts presented or even to hear the case at all. Your attorney must tackle all violations of your rights during the first hearing, because you can’t be certain that you will get a second one.

Another important difference between these types of motions is the potential results. In a motion to correct sentencing, the most that can happen is that a judge can modify your sentence.

While this modification can result in your being freed from jail if you have already fulfilled your full sentence, you will still be a convicted felon after the judge makes their decision. However, you can potentially have a conviction wiped from your record due to a post-conviction motion. You may find yourself facing a new trial, but even in that situation, your conviction has been negated, pending the outcome of that case.

Finally, a motion to correct sentencing usually is completed quickly. In this type of petition, the judge typically only has to make a ruling on facts that are supported by court records. When the discrepancy is clear and well-documented, the judge can usually decide in just a matter of days.

However, post-conviction motions often move at a much slower pace. In the best of cases, it could take weeks or months before a ruling is made. And sometimes an outcome might take years.

Similarities Between Post-Conviction Motions and Motions to Correct Sentencing

These two types of motions also share some similarities. In both cases, you will be returning to the courtroom. Like any motion, both of these types of petitions must be ruled upon by a judge in formal court proceedings.

Additionally, unless you have progressed to the federal level with post-conviction motions, you will once again find yourself in the same court where you were originally convicted. Unless you allege judicial misconduct, this is usually advantageous, because the original judge knows the details of your case, and your attorney shouldn’t be burdened with having to provide background material for your case.

Furthermore, both types of motions require that you wait for any pending appeals to finish before you can file your petition with the court. Because your conviction isn’t considered final until you have exhausted or waived all appeals, the court can’t entertain either of these types of motions earlier in the process. Any attempt to file these motions while an appeal is pending will typically be met with immediate dismissal.

Finally, unless you allege ineffective counsel in your original case, you should let your original criminal defense attorney handle these claims. They know the details of your case and are best capable of arguing these petitions before the court.

If there is any reason your original counsel can’t handle these motions, your new lawyer should consult with the attorneys who handled the first case and study all of the records that they collected before, during, and after the trial.

Ask Your Attorney About Your Options After Being Convicted of a Crime in Florida

What is a motion to correct sentencing, and what is a post-conviction motion? They are opportunities to improve your situation after being convicted of a crime in Florida. Talk to your attorney about these options as soon as your case is complete. With any luck, they may be your ticket to a shorter sentence or freedom.

If you want to know more, call the Panella Law Firm at 407-602-6559 or email us today. Our experienced criminal defense attorneys have a long record of defending clients from unreasonable prosecution and continue to fight zealously long after the verdict has been rendered.

Attorney Mike Panella

For Mike Panella, the concept of zealous advocacy developed at an early age – fueled by what he perceived to be an unjust resolution in a personal family legal matter. Mr. Panella would later attribute his passion to defend the rights of those who stand accused to those inequities in the legal system he observed, and considered unjust. Before opening Panella Law Firm, Mr. Panella served as an Assistant Public Defender for Florida’s 18th Judicial Circuit Public Defender’s Office and worked hundreds of cases in both Brevard and Seminole Counties. Mr. Panella was undefeated at trial. [ Attorney Bio ]

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