A reader has asked, when does post conviction relief work? Post conviction relief is successful when there has been a reversible error made somewhere within the legal progression of a case. The error could be anything from a faulty identification procedure to defense counsel not requesting a mistrial after a jury hears inadmissible and prejudicial testimony. See: Rodriguez-Olivera v. State, 328 So.3d 1080 (Fla. 2021) Botto v. State, 307 So.3d 1006 (Fla. 2020).
Post conviction relief can also be successful to correct errors made during the sentencing process. See: Botkin v. Commonwealth, 819 S.E.2d 652 (Va. 2018). For the purpose of this post, I am considering post conviction relief to encompass any criminal proceeding after sentencing.
Finding and presenting a successful post conviction claim
The difficult process to acquiring post conviction relief is finding the errors then timely presenting them within in a proper proceeding. Many errors must be raised during the direct appeal process or they become waived. Errors which are not obvious from the trial record are usually presented in a proceeding other than the direct appeal. This permits the court to hold an evidentiary hearing on possible issues which aren’t obvious in the trial record.
With reversible error potentially located anywhere within the criminal process, I recommend reviewing my free post conviction relief checklist. The checklist offers suggestions and supporting case law to help locate viable errors for presenting to a court when pursuing relief.
Relief is possible after losing a direct appeal
Post conviction relief is also possible when a direct appeal has been lost. Defendants can often file a notice of post conviction relief followed by a petition seeking post conviction relief.
Dependent upon jurisdictional rules of criminal procedure, the process for seeking relief separate from a direct appeal will be titled differently. Some jurisdictions may refer to this non-direct appellate process to seek relief as: 1) the post conviction process 2) the state habeas corpus process 3) the coram nobis process or something similar. Regardless of the process title, progression is usually similar a notice is filed followed by a petition identifying the claims for the court to consider.
Most often, in proceedings other than direct appeals, defendants will raise being the recipient of ineffective assistance of counsel. These ineffectiveness claims may involve trial and/or appellate counsel. However, there are other common arguments for post conviction relief which may be presented in these proceedings.
Post conviction relief can be a slow process
How long will post conviction relief take is a question I’m often asked. Unfortunately, there is no definitive answer. Post conviction results are driven by case complexity, the number of court levels pursued, continuances and other events. And, there exists the real possibility relief never is achieved.
In a recent post, does credibility matter in a criminal trial, I shared an example of a defendant having gone through three unique trials. Based on my experience, this defendant’s case was likely to acquire post conviction relief. It still hasn’t happened.
My closing thoughts
How to win post conviction relief always begins by finding that one reversible issue. My suggestion to defendants untrained in the law and searching for a successful post conviction issue, is to buy a post conviction cite book. Then, review case references mentioned in the cite book. This will help every defendant become familiar with what works, and doesn’t work, when trying to find that one issues which can bring relief.
Every week I read cases where defendants have been successful in either their direct appeal or a subsequent post conviction proceeding. So, post conviction does work. You just have to find that one reversible error.