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Florida Criminal Law: Understanding Motions To Vacate Criminal Convictions

  • By: Serving Immigrants
  • Published: July 26, 2019
Florida Criminal Law: Understanding Motions To Vacate Criminal Convictions

If you have pled guilty to a crime, or been found guilty, you may think that your options are over, even if you are actually innocent or otherwise treated unjustly. While it is unfortunate, the justice system is not perfect and can make mistakes. Fortunately, there are laws in place that allow these mistakes to be rectified. One option for those who believe they have been unjustly treated is to file a motion to vacate the criminal conviction. If approved, the previous conviction will be set aside and you will have the opportunity to have your trial heard again, this time hopefully getting better results.

 Grounds For A Motion To Vacate

In order to have a criminal conviction vacated, you must first have grounds for the motion. This simply means that you need to have a good reason why the conviction should be vacated. There are a number of different types of grounds that can be used in the state of Florida, including the following:

  • Unconstitutional or Unlawful – If it can be shown that the judgment that was entered or sentence imposed against you was in some way a violation of the laws or constitution on either a state or federal level.
  • Out of Jurisdiction – If you’re able to prove that the court where your conviction was handed down didn’t have jurisdiction.
  • Excessive Sentence – When the sentence handed down by the courts exceeds what is permitted by law.
  • Involuntary Plea – If your plea was coerced or otherwise invalid.
  • Ineffective Assistance of Counsel — if your prior attorney was not effective and incorrectly advised you about the law, the plea, or the immigration consequences of said plea

Time Limits

In most cases, the motion to vacate a criminal conviction must happen within two (2) years of the time that the judgment and sentence have been issued. This does not apply, however, if it can be shown that new facts were discovered about the case, if the constitutional right was not established within two (2) years, or if the defendant’s legal counsel neglected to file when they should have.

Getting The Motion Right

Whenever filing this type of motion it is critical that it contains all the required details or the courts won’t even hear it. Specifically, the motion must be made under oath saying that the defendant has either read it or had it read to them, and that all the facts within are true. It will also identify the judgment or sentence that the petition wants changed, whether it was from a plea or a trial, whether there was an appeal, whether any post-conviction motions have been filed, and more.

The courts are usually hesitant to grant a motion to vacate because the assumption is that the courts have handled the case correctly up until this point. If you wish to have your conviction vacated, you need to make sure everything is handled perfectly to avoid any problems. The best place to start is by working with an attorney with experience in this area. Please contact us to set up a consultation and learn more about your options.

Magdalena Cuprys, Esq.

As an immigrant and a refugee herself, attorney Magdalena Cuprys understands how
important, terrifying, and exciting immigrating to America can be. She understands
how important it is to have one’s legal status in order to achieve the American dream.

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