Motion to Vacate Conviction, Judgment & Sentence, Florida Rule of Criminal Procedure 3.850

In most cases, a Motion to Vacate Conviction, Judgment & Sentence pursuant to Florida Rule of Criminal Procedure 3.850 must be filed prior to the expiration of two years after a judgment becomes final. Typical grounds for seeking 3.850 relief include ineffective assistance of counsel. Relief can be granted where trial counsel failed to move to suppress illegally seized evidence or pursue a viable defense which if done would have likely resulted in a different outcome. Other grounds include fundamental constitutional claims and newly discovered evidence such as exonerating DNA.

Habeas Corpus

A writ of habeas corpus is often filed by prisoners seeking release. A writ of habeas corpus is a court order to a prison official directing to bring an inmate to the court to determine whether that inmate is being imprisoned lawfully and whether he should be released. A habeas corpus petition must show that the court ordering the detention or imprisonment made a legal or factual error.

28 U.S.C. § 2254

Section 2254 permits a convicted state court defendant to challenge his conviction, judgment and sentence in federal court on constitutional grounds after unsuccessfully exhausting his constitutional claims available in the state court system (on direct appeal and/or state habeas corpus, 3.850 motion in Florida, review).

28 U.S.C. § 2255

Section 2255 is the flip side of § 2254 available to federal prisoners who wish to attack their federal convictions and/or sentences.

Modification of Sentence Pursuant to Title 18 U.S.C. 3582

Title 18 U.S.C. §3582(c)(2) permits the district court to resentence a defendant who was originally sentenced on the basis of a guideline which has subsequently been lowered and made retroactive by the United States Sentencing Commission.

Retroactivity is governed by the policy statement at U.S.S.G. §1B1.10. Section 1B1.10 specifically delineates the crack cocaine amendments as amendments which may be applied retroactively.

The vehicle for pursuing a resentencing, is by filing a motion pursuant to §3582(c)(2) in the district court where the original sentencing occurred.