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Often, those in need of postconviction or appeal proceedings (and their family members) are overwhelmed with the pressures of a recent conviction. The person convicted faces the stressful realities and fears of beginning a prison sentence, and his or her family is left with the emotional burden caused by missing a loved one, fear for the loved one, financial security, and, often, raising children. Nevertheless, it is usually left to family members to determine what steps in the legal process must next be taken. Absent a law degree, this can be very confusing.

If you find yourself in this or a similar situation, we hope that the following will help you to understand what steps to take next, and we hope this relieves some of the stress.


Once a person is convicted, he or she has two options, and can take advantage of one or both: filing an appeal and filing for postconviction relief (in the legal world, “relief” is the term used for getting what you want: reversal of a conviction or sentence, or correction of other errors in a case. This is also sometimes referred to as a “remedy”).

An appeal is “[a] proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal.”1 In other words, an appeal is filed in a court having higher authority (an appellate court)—which in Florida is the District Court of Appeal—and argues that the lower court (the “circuit court” in Florida) made an error that requires reversal.

There are many different errors that occur in lower courts, but not all of them entitle a person to reversal. Errors that require reversal are (appropriately) titled “reversible error,” or sometimes “fundamental error.” In order for an error to be a reversible error, it must have been “preserved” for review in the appellate court, which means that it was argued or objected to in the lower court by defense counsel. If an error is not preserved, the appellate court will not consider it unless it is a fundamental error.

A fundamental error is “the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”2 Of course, fundamental errors do not only occur at trial, but are equally applicable to plea proceedings.3 Basically, fundamental errors—which are very rare—can be argued in the appellate court even if they are not preserved because they are such serious errors that the conviction is not valid.

“Direct appeals” are filed immediately after the conviction (they must be initiated within thirty days of the conviction).4 Most decisions made by lower courts can be appealed, but the most common in criminal cases are direct appeals. Once a direct appeal is filed, the lower court loses its jurisdiction of the case, and as such cannot consider postconviction motions until the appeal is decided.

Appeals are not “granted” or “denied.” Instead, they are “affirmed” or “reversed.” This is because the question presented to the appellate court is whether the lower court committed error. If the appellate court decides that the lower court did not commit error, they will “affirm” the lower court’s decision—meaning they agree with and uphold the decision. If the decide that the lower court committed reversible error, they will “reverse” the lower court’s decision, which sometimes is the conviction, and other times is the sentence.

If an appeal is affirmed, the next step is to file for postconviction relief.


Postconviction is the process of applying to a court for relief after a conviction has been entered. Black’s defines “postconviction-relief proceeding” as “[a] state or federal procedure for a prisoner to request a court to vacate or correct a conviction or sentence.”5 In Florida, however, the rules of court applicable to postconviction relief also apply to convicted persons who are not prisoners.6

The two most common postconviction motions are filed under Florida Rules of Criminal Procedure 3.800 and 3.850. Motions filed under Rule 3.800 are usually for correction of illegal sentences, to correct sentencing errors, or to modify or reduce a sentence. Motions under Rule 3.850 usually seek to vacate a conviction. Most of the time, when the phrase “motion for postconviction relief” is used, the motion being referred to is a motion under Rule 3.850. The motions are commonly referred to by the rule under which they are filed, i.e., “I’m filing a 3.850,” or “when did you file your 3.800?”

There are many possible outcomes when these motions being granted. In some instances, the sentence is modified, in others the conviction is vacated. When a conviction is vacated, the defendant might face more time if there are more facts, new facts, or a new judge, so due consideration must be given as to whether it is appropriate to file for postconviction relief. Sometimes, it is best not to file.


Appeals are usually filed prior to filing for postconviction relief, but if the postconviction motion is denied, the denial of the postconviction can be appealed. So…

1. Direct appeal

2. Postconviction

3. Appeal of denial of postconviction

Sometimes it goes even further, like filing in the federal courts. By then, however, most people have enough experience to understand the process, and (hopefully) have hired an attorney to help walk them through the process.

Having a conviction and/or sentence reversed after the initial conviction is very difficult. Appeals and postconviction should never be relied upon in determining whether to enter a plea or go to trial. I’ll say it again: APPEALS AND POSTCONVICTION SHOULD NEVER BE RELIED UPON IN DETERMINING WHETHER TO ENTER A PLEA OR GO TO TRIAL. But if you or a loved one are convicted, appeals and postconviction may provide avenues for relief, and that is what our firm focus on! Give us a call if you have any questions!


1 Black’s Law Dictionary 117 (10th ed. 2014).

2 McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) (internal quotation omitted).

3 See, e.g., Miller v. State, 988 So. 2d 138 (Fla. 1st DCA 2008) (finding fundamental error in plea proceeding); Otero v. State, 696 So. 2d 442 (Fla. 4th DCA 1997) (same).

4 Fla. R. Crim. P. 9.140(a)(3).

5 Black’s 1354.

6 Fla. R. Crim. P. 3.850(a); Wood v. State, 750 So. 2d 592, 595 (Fla. 1999).

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