Criminal Law Questions? Ask a Criminal Lawyer.
I am a Florida criminal defense attorney and I would be glad to try to help. I just need some clarification first....
So was he convicted in a trial?
What, if anything, has he done to take the matter back to court since the conviction in 2004? For example, has he filed any motions or appeals?
I hate to be the bearer of bad news, but there is very little recourse for your friend due to the facts of his situation.
In Florida, a criminal defendant has a constitutional right to an appeal from any jury conviction. However, an appeal must be filed within thirty days of the conviction. As he was convicted about eight years ago, his appellate rights ran long ago. Clearly this is not a viable option for him.
Florida also permits a criminal defendant to file a motion arguing ineffective assistance of counsel. For example, your friend could have argued that his attorney did not keep him properly informed of the plea negotiations. However, Florida law requires that such a motion be filed within two years of the conviction. Again, with eight years having passed, this is no longer an option.
I asked about his post-conviction efforts thus far because any such efforts might have extended these time periods. For example, if he had filed a motion for ineffective assistance of counsel around the two year mark and lost that motion, he could have then filed an appeal related to that motion.
For your friend to have any viable course of action at this time, he would need to have something extremely unusual. Florida does not put a time limit on many "fundamental error" type of issues. As an example, an illegal sentence is subject to an appeal at any time. By this I mean, if your friend's maximum permissible sentence was 100 years but he got 130 years, he could appeal that at any time. Another example might be if it was recently discovered that the judge was somehow related to the victim. As you can see, this would be something very unusual. While I do not have any definite statistics, I would suggest that such a fundamental error occurs in about .5% of cases, it is that rare.
I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthfulresponse.
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As to that, your friend has at least two significant issues working against him; he was convicted of extremely serious charges and he let too much time pass before doing anything. He could have filed an appeal...about eight years ago. He also could have filed a motion arguing ineffective assistance of counsel...about six years ago. These time limits were created because the law likes finality. As the time limits expired long ago, these are simply not viable options.
While my firm is not located in Polk County, we have handled several cases there. From my experience, I can tell you that the judges in Polk County are generally considered to be rather harsh when it comes to sentencing, especially for sex offenses. However, it is not unlawful to be harsh and the sentences they hand out are typically upheld on appeal.
As to fundamental error, you have not described anything yet that makes me think that such an error occurred here. Also, it would be impossible to provide an exhaustive list of what constitutes fundamental error, every case has its own specific facts and this creates a great deal of variation. Some other possibilities might include where the jury was given improper instructions that may have led to the conviction, where the prosecutor was permitted to make clearly improper arguments or where the judge incorrectly let in evidence that was extremely prejudicial to the defendant.
The prosecutor was permitted to make clearly improper argument sand the judge let in evidence that was extremely prejudicial to the defendant. How do you ask for a new trial?
He would file an appeal arguing that these issues constituted fundamental error and that the time restriction should not apply.
I will forewarn you, the time limitations will clearly be an issue in any form of post-conviction relief your friend pursues. To prevail here, your friend would need the appellate court to rule not only that there was an error that should be addressed but also that, due to the nature of that error, the time limitations should not apply. In a timely appeal, the defendant only needs to prevail on the issue of there being an error that should be addressed, your friend has an additional hurdle he needs to clear. In short, nothing he tries will be easy.
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Hi Joseph! Can I get transcripts of the court proceedings regarding this case? Should I contact the Polk County Ct. or contact the Public Defender?. How to file an appeal and what does it cost to do so? .
Yes, you should be able to get transcripts. To request the transcripts, you would begin by contacting the Polk County clerk of court. You will need the name of the defendant, the name of the judge and the relevant dates. With that information, the clerk can tell you how the proceedings were recorded, whether by a court reporter or by way of a digital recording device. You can then order the transcripts from the relevant entity.
Depending on the length of the proceedings, the transcripts could get quite expensive. If the clerk provides a fee that is too high for you, your friend might consider seeing if he can get the public defender appointed for an appeal or being declared indigent for purposes of costs. Either way, the transcripts would then be paid by the State on his behalf.
The filing of an appeal begins with the filing of a "notice of intent to appeal". The notice is filed with the clerk for the appellate court and that initiates the process with each party filing briefs as the appeal moves forward.
As to costs, that can vary widely from case to case. There will be a filing fee for the clerk, I believe that is fairly nominal, perhaps a couple hundred dollars. As we've discussed, transcript fees will depend on the length of the proceedings, it may be as little as a few hundred dollars or as much as several thousand, the clerk can tell you the fee in advance. If an attorney is hired, those fees will vary widely as well. I have heard of attorneys doing appeals for as little as about $2,000 and as much as about $25,000. If you are interested in attorney fees, my thought would be to talk to 3 or 4 appellate attorneys in your area to get a better idea. And, of course, the public defender could be appointed if your friend is eligible.
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