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What Remedies Do I Have if I Am Convicted?

August 16, 2012
By The Wiseman Law Firm

You can be convicted of a criminal offense by either entering a plea of guilty or of nolo contendere (no contest) or by being found guilty by a judge in a court trial or by a jury. Although it is difficult to overturn or vacate your conviction, you do have several remedies.

Vacating a Conviction

Any attorney who represents you in a criminal case must adhere to certain standards of competency. The failure to do so can result in vacating your conviction for ineffective assistance of counsel. Some examples of ineffective assistance include the following:

  • Failing to investigate the facts or prepare for your defense
  • Failing to call certain witnesses that might have demonstrated your innocence or significantly mitigated your degree of involvement
  • Failing to cross-examine witnesses or to properly examine them
  • Failing to make certain material objections
  • Failure to give correct or appropriate advice on the material consequences of your plea

Even though your attorney might have been less than zealous in his or her defense, presentation of evidence, or method of examining witnesses, many courts will not vacate a conviction if these are seen as trial strategy or were not so serious as to deprive you of a fair trial. In other words, your attorney’s performance must have been egregious.

Should your attorney mistakenly advise you that your guilty plea would not affect your citizenship status, risk of deportation, or that you would retain a professional license, this might be egregious enough to vacate a conviction.

Plea Not Entered Knowingly and Voluntarily

This is a rare circumstance, especially in felony matters, since judges and prosecutors will typically go to lengths to ensure that a defendant is aware of the rights he or she is waiving, the possible sentence to be imposed, and the consequences of a guilty plea.

In some misdemeanor pleas, a court may have rushed a plea and not advised defendants of the rights being waived or that their plea exposes them to certain immigration issues. Generally, a motion to vacate a conviction on these grounds must be filed within two years of entering the plea.

Motion for a New Trial

Your attorney can move the trial court for a new trial based on several grounds such as prejudicial error, that the verdict is contrary to the law or the weight of the evidence, for misconduct by jurors, or for prosecutorial misconduct.

  • Prejudicial Error: This includes evidence that unduly prejudiced the jury or was obtained illegally or lacked any foundation but was allowed to be introduced and heard by the jury. Prejudicial error can also include material evidence that was excluded, which could have changed the minds of reasonable jurors.

  • Weight of the Evidence: Florida law also states that a new trial should be granted if the weight of the evidence, and not its sufficiency, was such that the defendant should have been acquitted. In essence, the trial judge can act as another juror determining the credibility of witnesses and the weight of the evidence.

For this motion, your attorney could argue that there might have been sufficient facts for a jury to have found the defendant guilty, but the credibility of the witnesses and the evidence presented might have not supported the jury’s verdict and that a greater amount of credible evidence supported the other side of an issue.

  • Juror Misconduct: In cases where a juror lied about his or her relationship to the defendant or conducted his or her own investigation, discussed the case with outsiders, or the conduct involved external influences, there may be grounds for a new trial.
  • Prosecutorial Misconduct: Prosecutors who deliberately mislead the court or withhold exculpatory evidence from the defense may have committed misconduct that results in a new trial if the evidence was material.

Motion to Vacate Sentence

Your attorney could move to vacate your sentence if the trial judge exceeded the sentencing guidelines or lacked jurisdiction to enter the judgment or impose the sentence. This could result in a reduction of your sentence. The judge could also have erroneously considered you as a habitual offender or violent career offender, which resulted in an enhanced sentence.

Motions to Modify or Mitigate Sentence

If you are sentenced to prison, community service or a long period of probation, your attorney could move the court to mitigate or modify your sentence, community service or probation. A prison sentence can sometimes be modified to home confinement, a reduction in the term of incarceration, or the imposition of probation or community control. This may be based on your ill health, the health of your immediate family members, your family’s inability to financially support themselves or your performance while on probation or community control.


Typically, your attorney must make a motion in the trial court for a new trial or other relief and have it denied before making an appeal to Florida’s appellate court. In some cases, a direct appeal can be made if there was prejudicial error and your attorney properly preserved his or her objection at trial, unless the error constituted fundamental error. Prejudicial error is material error committed by the trial judge that is critical to the trial’s outcome. These include admission of or failure to admit material evidence. If the error is significant, the appellate court will reverse the conviction and remand, or return the case to the trial court for a new trial or sentence.

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