Can a judge set aside a guilty plea after sentencing?
Can I appeal on grounds of lack of evidence?
How do you prove “ineffective assistance of counsel” on appeal?
Can a judge set aside a guilty plea after sentencing?
Usually, once you've been sentenced for a crime, the issue as to guilt is considered resolved. However, there are “post conviction remedies” available in certain situations:
- If the plea or sentence was imposed in violation of a constitutional right
- If the sentence was illegal
- If the law under which the person was convicted is unconstitutional
- If the court didn't have proper jurisdiction over the person or the offense
- If new evidence has come to light since the conviction, which could not have been known at the time of the plea and sentence
In these circumstances, the conviction and sentence can be set aside in the interest of justice.
There are varying but strict time limits for requesting such post-conviction relief, both at the state and federal level. If you think the facts of your case fall into one of these listed categories, immediately contact a lawyer in your state to find out what options might be available to you, or, in Florida, you can contact our Tampa criminal attorney.
Can I appeal on grounds of lack of evidence?
Yes, but the standard for reversing a conviction based on the lack of credibility of witnesses and insufficiency of the evidence is a very tough one. The court must decide whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charged crime beyond a reasonable doubt. The prosecution is given the benefit of every reasonable inference that could be fairly drawn from the evidence.
A jury's decision as to which witnesses to believe is rarely reversed. The witness’ testimony would have to be found to be “palpably false and incredible,” such that no person would believe it to be true.
Your appellate lawyer would want to review the transcripts of the trial before providing an opinion as to the likelihood of success on appeal.
How do you prove “ineffective assistance of counsel” on appeal?
The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel to every defendant in a criminal case. “Effective assistance of counsel” doesn't mean perfect counsel. A lawyer’s representation of a client is “ineffective” only if it falls below an objective standard of reasonableness and prejudices his defense.
The burden is on the defendant to establish ineffective assistance of counsel. There is a strong presumption that a lawyer’s conduct falls within the wide range of reasonable professional assistance. The court won’t focus on what's prudent or appropriate, but on what is constitutionally necessary. And the defendant must show that there's a reasonable probability that, but for the lawyer’s unprofessional errors, the result of the case would have been different.
Courts realize that a person isn't ordinarily able to recognize his lawyer’s errors and evaluate his professional performance. A person may very well not know he hasn't been competently represented until after trial or appeal, usually when he consults another lawyer about the case. So many courts will allow a person to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, even if he didn't directly appeal his state conviction and sentence or file to withdraw his guilty plea.
If you've missed the filing deadlines for a motion for a new trial or to file a notice of direct appeal, you might first try to reduce the sentence under Florida's laws for post-conviction relief. If that fails, and you believe there are grounds to support it, you can attempt to file what's called a “habeas corpus” petition in federal court alleging ineffective assistance of counsel.
