Florida Criminal Defense and DUI Defense Blog

29Mar, 21

Post conviction relief in FloridaPost Conviction Relief is an avenue to overturn a bad result at the trial court level.

There are two basic kinds of Post Conviction Relief.

There’s the direct appeal. At a direct appeal, a person who’s been convicted appeals to the next higher court and tries to convince that court that the trial judge screwed up his or her case.

In order to win a direct appeal, it’s necessary that a person convince the court of appeals that the trial court judge made one or more significant errors – either errors of commission or omission, Either the judge let something in that should not have been presented to the jury, or kept something out that should have been presented to the jury.

Another avenue for direct appeal is if the judge made a significant mistake during the jury selection process – either kicking off or leaving on a jury wrongly.

A second avenue of Post Conviction Relief is going back to the trial court level and saying it was not the judge who messed up, it was the defense lawyer.

This is a claim under Florida Rule 3.850 and it’s called Ineffective Assistance of Counsel.

In a claim such as this, a person is complaining that his or her lawyer did such a poor job by committing, again, one or more significant acts or omissions that the result of the trial is not reliable. In other words, if my lawyer had only done this or not done that, the verdict would have been different.

Let me tell you about a couple of those cases that I’ve been directly involved in. My firm and I handle post conviction claims on behalf of people who have been convicted and they believe wrongly when they were represented by another lawyer. I’ve also been called upon to testify as an expert witness on the issue of Ineffective Assistance of Counsel, where it’s alleged to have been committed by some other lawyer and there are new lawyers representing the defendant in this proceeding.

In one case, I assisted in getting a man a new trial after he had been convicted at trial of DUI Manslaughter.

This was a case up in the panhandle and the accused, while driving under the influence, had hit and killed a person riding a bicycle. The issue was – was the bicyclist in the road or was he off on the shoulder?

The bicyclist in question was riding a black bike at ten o’clock at night on an unlighted rural highway. He was dressed all in black and although his bike had a reflector on it, he had put a cooler behind the reflector and a jacket over the cooler so that the reflector could not have been seen.

This case came down to a battle of accident reconstruction theories.

The original defense trial lawyer reached out to an accident reconstruction expert, an engineer, and discussed the case with him, but didn’t actually hire him. After this preliminary discussion, the engineer said, “Let me know when you get all the discovery materials. I want to look at all the photographs, and I’ll help you prepare to take the deposition of the government’s expert and I’ll help you to cross-examine that person at trial.”

For reasons that we still haven’t figured out, that trial lawyer didn’t actually hire the engineer, and she handled things on her own with her own experience, such as it was, with accident reconstruction.

The police accident reconstructionist took photographs showing what he believed to be the debris field (that is the scattering of debris from the accident, from the bicycle and from the car). Based on that, the prosecution accident reconstruction expert created what he called a debris field that showed the point of impact and he said the point of impact was on the shoulder of the road.

If he had been correct, our client would have been off the road when he hit the bicyclist.

After he went to trial and lost, this man and his family retained new counsel and they brought me in to review the work of the trial lawyer. One of the things we did is we hired a new engineer to look at all of the discovery materials.

The new engineer said, “Look at these photographs. Look at the debris farther to the left that the prosecution’s expert missed. The debris field was wider and spread farther to the left than he said. If you take into account all of the debris that came from this accident, the point of impact was on the road.”

Based on that, we filed a claim alleging that it was the trial lawyer’s failure to consult with and bring in an accident reconstruction expert that caused her to lose this trial.

When our claim was set for a hearing, the lawyers I was working with actually went back to the original defense consultant, engineer, and showed him the pictures and showed him the opinion letter from the new engineer, and he agreed completely.

He said, “I wish that lawyer had reached out to me and shared all these pictures. My opinion would have been the same as your new engineer. This man should not have been convicted at trial because this accident happened in the roadway and even though your client was driving while intoxicated, and he’s guilty of that, he’s not guilty of DUI Manslaughter. In fact, if he hadn’t hit the bicyclist, the sober driver behind him would have.”

Based on that, we were able to get this conviction and sentence overturned and get the man a new trial.

A more recent case I was involved with, a case that had some notoriety that was out of Sanford, where a woman had been wrongly convicted of murdering her estranged husband.

This was an unusual relationship. The couple, while going through divorce, would still get together from time to time and have sexual relations.

At one point, on this one particular fateful evening, things got rough. She told him to stop, and he refused. He acted out his anger at her over the divorce and he was forcing himself on her sexually. She had a gun under her pillow. She took out and she killed him.

As the case proceeded toward trial, the defense managed to get certain evidence excluded because it had been wrongfully obtained by the police. During the trial, the defense lawyers made a move, based out of not knowing, they opened the door to allow that previously excluded evidence in.

The evidence we’re talking about is a recorded statement that their client had made pre-trial. The lead trial lawyer had never listened to the entire statement and didn’t realize the damaging material at the end, and didn’t realize how letting another piece of evidence in would have opened the door to that evidence.

So, the trial lawyer not only wasn’t fully aware of the evidence in his case, but he also was unaware of the law. The combination of the two led him to make a terrible tactical decision that no lawyer in his right mind would have made, that opened the door and allowed the prosecution to introduce this taped statement.

It was my opinion, and I testified that this was not a mere tactical move. This was ineffective assistance of counsel. It was a decision made by a lawyer who didn’t know the evidence in his case and didn’t know the law. Had he listened to the recorded statement of his client, he would have known what was on there, and had he understood the law, he would not have made the move he did that opened the door to allow this excluded evidence in.

That woman has been granted a new trial.

There’s a third case that I became involved in where actually the lead detective on the case ended up helping the defendant get a new trial.

There was a young man who worked at Disney, who was accused of a sexual assault against another co-worker at Disney. This was a young couple that had an on-again off-again relationship.

The woman had made statements consistent with consent in a recorded statement to this detective. The detective notified the prosecution, pre-trial, and the prosecution failed to disclose it.

The defense was also unaware of it because the defense attorney defending this young man chose not to even bother taking the deposition of the lead detective, which is just a colossal mistake.

After the case went to trial, the lead detective had moved on, wasn’t working for that agency any more, but read about the conviction. He reached out to the defendant’s family and he asked about this recorded statement. That was the first time they learned of it.

The family hired new counsel. The new counsel brought me in to evaluate what the trial lawyer had done and not done.

I testified as an expert witness in Orange County, in Orlando, at the hearing on this young man’s claim for post conviction relief.

It was clear that his lawyer did not do a proper job in preparing his case for trial. It was also clear that this prosecutor had hidden the ball in this case.

The upshot of it was because of ineffective assistance of counsel, this young man had his conviction for a felony sex crime overturned, and he was released from prison.

These are just three examples of cases that I was personally involved in where, because the original lawyer did not do what he or she was supposed to do, a client was wrongly convicted.

These cases are defendable. They are winnable. But a lawyer’s got to do the lawyer’s job.

If you have this kind of a case, if someone you care about has been wrongly convicted, and you think I can help, please reach out to me. You can find me at the Kessler Law Firm, 772-466-4900, or through this website by clicking on the CONTACT tab at the top of the page.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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