Fla. R. Crim. Proc. Rule 3.850. "Motion to Vacate, Set Aside, or Correct Sentence"  (Effective July 1, 2011)

(a) Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere be-fore a court established by the laws of Florida:

    (1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.

    (2) The court did not have jurisdiction to enter the judgment.

    (3) The court did not have jurisdiction to impose the sentence.

    (4) The sentence exceeded the maximum authorized by law.

    (5) The plea was involuntary.

    (6) The judgment or sentence is otherwise subject to collateral attack.

(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case or more than 1 year after the judgment and sentence become final unless it alleges that

    (1) the facts on which the claim is predicated were unknown to the movant or the movantís attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence, or

    (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity, or

    (3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.

(c) Contents of Motion. The motion shall be under oath and include:

    (1) the judgment or sentence under attack and the court which rendered the same;

    (2) whether there was an appeal from the judgment or sentence and the disposition thereof;

    (3) whether a previous postconviction motion has been filed, and if so, how many;

    (4) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions;

    (5) the nature of the relief sought; and

    (6) a brief statement of the facts (and other conditions) relied on in support of the motion.

This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. Motions shall be typewritten or hand-written in legible printed lettering, in blue or black ink, double-spaced, with margins no less than 1 inch on white 8 1/2-by-11 inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause.

(d) Procedure; Evidentiary Hearing; Disposition. On filing of a rule 3.850 motion, the clerk shall forward the motion and file to the court. If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order. Unless the motion, files, and records of the case conclusively show that the movant is entitled to no relief, the court shall order the state attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant has used any other available state remedies including any other postconviction motion under this rule. The answer shall also state whether an evidentiary hearing was accorded the movant. If the motion has not been denied at a previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion. If an evidentiary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney, determine the issues, and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the movant as to render the judgment vulnerable to collateral attack, the court shall vacate and set aside the judgment and shall discharge or resentence the movant, grant a new trial, or correct the sentence as may appear appropriate.

(e) Movantís Presence Not Required. A court may entertain and determine the motion without requiring the production of the movant at the hearing.

(f) Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

(g) Service on Parties. The clerk of the court shall promptly serve on the parties a copy of any order addressing a motion under this rule, noting the date of service by an appropriate certificate of service.

(h) Rehearing. The party may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order. A timely filed motion for rehearing shall toll finality of any final order addressing a motion under this rule.

(i) Appeals. An appeal may be taken to the appropriate appellate court from a final order addressing a motion under this rule. All final orders addressing a motion under this rule shall include a statement that the party has the right to appeal within 30 days of the rendition of the final order. All nonfinal orders addressing motions under this rule shall include a statement that "this order is a nonfinal, nonappealable order."

(j) Belated Appeals. Pursuant to the terms and procedures outlined in Florida Rule of Appellate Procedure 9.141(c), a petitioner may seek a belated appeal.

(k) Belated Discretionary Review. Pursuant to the terms and procedures outlined in Florida Rule of Appellate Procedure 9.141(c), a petitioner may seek belated discretionary review.

(l) Habeas Corpus. An application for writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced the applicant or that the court has denied the applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of the applicantís detention.

(m) Frivolous or Malicious Collateral Criminal Pleadings or Motions. A prisoner, who is found by a court to have brought a frivolous or malicious collateral criminal proceeding, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The prisoner may also be prohibited from filing future pro se pleadings attacking his or her conviction and sentence.

    Upon its own motion or on motion of a party, the court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith by issuing an order stating the essential facts constituting the frivolous or malicious nature of the collateral criminal proceeding, requiring the defendant to show cause why the prisoner should not be prevented from bringing further attacks on his or her conviction and sentence, and to explain why he or she is not abusing the legal process. The order shall allow a reasonable time for preparation and response by the prisoner, after service of the order on the prisoner. The court shall direct the clerk of the court to forward a certified copy of the order to show cause to the prisoner.

    Upon receipt of the prisonerís response to the order to show cause, if any, or upon expiration of the time allowed for the prisonerís response, the court shall determine whether the pleading or paper was frivolous or malicious. If supported by the record, the court shall enter an order with written findings that a motion for postconviction relief is frivolous or malicious, preventing the prisoner from bringing further attacks on his or her conviction and sentence, directing the clerk of the court not to accept any further pro se filings or pleadings concerning the subject case, further directing the clerk of the court to summarily reject any further pleadings and papers regarding the case unless that pleading or paper is filed by a member in good standing of The Florida Bar, and that a certified copy of the order be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in Chapter 944, Florida Statutes. The prisoner shall also be served with a certified copy of the written order.


Committee Notes

1972 Amendment. Same as prior rule. Former rule 3.860, previously deleted, now found in article 18, The Florida Bar Integration Rules.

1977 Amendment. Nothing has been taken from proposed rule 3.850. Additions have been made. The committee proceeded on the theory that generally the motions coming under the purview of the rule were filed by prisoners and will be considered ex parte.

The proposed amendment contemplates that in those cases where the trial court found the movant entitled to some relief, the state attorney would be noticed and given an opportunity to be heard. The rule further contemplates that if the appellate court reverses, it would do so with directions to conduct a hearing with notice to all parties.

(a), (b), (c), (d), (e)

The committee was of the opinion that the motion should contain the minimum prerequisites indicated in the lettered portions to permit the trial court to quickly ascertain whether or not the motion was entitled to consideration and, if not, provide for its return to the movant as unacceptable. This procedure is similar to federal rules dealing with postconviction motions.

The committee perceives that denial of a motion will either be based on the insufficiency of the motion itself or on the basis of the file or record which the trial court will have before it. The proposal provides for a simplified expeditious disposition of appeals in such cases. It is to be noted, however, that in those cases where the record is relied on as a basis for denial of the motion, it may in exceptional cases involve a substantial record, but the advantages of this procedure seem to justify coping with the unusual or exceptional case. It is the opinion of the committee that, in any order of denial based on the insufficiency of the motion or on the face of the record, trial courts will set forth specifically the basis of the courtís ruling with sufficient specificity to delineate the issue for the benefit of appellate courts.

The committee thought that the provision permitting ex parte denial of a motion based on the face of the record was appropriate inasmuch as the movant was granted an opportunity for rehearing in which to point out any errors the court may have made, thus providing sufficient safeguards to ensure consideration of the prisonerís contentions.

The prisoner or movantís motion for rehearing will be a part of the record on appeal, thereby alerting the appellate court to the movantís dissatisfaction with the trial courtís ruling.

1984 Amendment. The committee felt that provisions should be added to allow the court to consider why a subsequent motion was being filed and whether it was properly filed, similar to Federal Rule of Criminal Procedure 9(b) or 35.

The committee also felt that the court should have the authority to order the state to respond to a 3.850 motion by answer or other plead-ing as the court may direct.

The committee felt that even if a motion filed under rule 3.850 does not substantially comply with the requirements of the rule, the mo-tion should still be filed and ruled on by the court. Hence the former provision authorizing the court to refuse to receive such a nonconform-ing motion has been removed and words allowing the presiding judge to summarily deny a noncomplying motion have been satisfied.

1992 Amendment. Pursuant to State v. District Court of Appeal of Florida, First District, 569 So.2d 439 (Fla. 1990), motions seeking a belated direct appeal based on the ineffective assistance of counsel should be filed in the trial court under rule 3.850. Also, see rule 3.111(e) regarding trial counselís duties before withdrawal after judgment and sentence.

1993 Amendment. This amendment is necessary to make this rule consistent with rule 3.851.


Court Commentary

1996 Court Commentary. Florida Rule of Judicial Administration 2.071(b) allows for telephonic and teleconferencing communication equipment to be utilized "for a motion hearing, a pretrial conference, or a status conference." Teleconferencing sites have been established by the Department of Management Services, Division of Communications at various metropolitan locations in the state. The "Shevin Study"1 examined, at this Courtís request, the issue of delays in capital postconviction relief proceedings and noted that travel problems of counsel cause part of those delays. The Court strongly encourages the use of the new telephonic and teleconferencing technology for postconviction relief proceedings that do not require evidentiary hearings.

1Letter from Robert L. Shevin "Re: Study of the Capital Collateral Representative" to Chief Justice Stephen H. Grimes (Feb. 26, 1996) (on file with the Supreme Court of Florida in No. 87,688).


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