Fla. Rules of Crim. Proc. RULE 3.850 Motion To Vacate; Set Aside;
or Correct Sentence
(Florida Rules of Criminal Procedure (2019
Rule 3.850 Motion To Vacate; Set Aside; or Correct Sentence
RULE 3.850. MOTION TO VACATE; SET ASIDE; OR CORRECT SENTENCE
(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 before a court established by the laws
(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; or
(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 unless it alleges that:
(1) the facts on which the claim is predicated were unknown to the movant
or the movant's 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
(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 must be under oath stating that the defendant has read the
motion or that it has been read to him or her, that the defendant
understands its content, and that all of the facts stated therein are true
and correct. The motion must include the certifications required by
subdivision (n) of this rule and must also include an explanation of:
(1) the judgment or sentence under attack and the court that rendered the
(2) whether the judgment resulted from a plea or a trial;
(3) whether there was an appeal from the judgment or sentence and the
(4) whether a previous postconviction motion has been filed, and if so, how
(5) 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;
(6) the nature of the relief sought; and
(7) 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. If the defendant is filing a newly
discovered evidence claim based on recanted trial testimony or on a newly
discovered witness, the defendant shall include an affidavit from that
person as an attachment to his or her motion. For all other newly
discovered evidence claims, the defendant shall attach an affidavit from
any person whose testimony is necessary to factually support the
defendant's claim for relief. If the affidavit is not attached to the
motion, the defendant shall provide an explanation why the required
affidavit could not be obtained.
(d) Form of Motion.
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
(e) Amendments to Motion.
When the court has entered an order under subdivision (f)(2) or (f)(3),
granting the defendant an opportunity to amend the motion, any amendment to
the motion must be served within 60 days. A motion may otherwise be amended
at any time prior to either the entry of an order disposing of the motion
or the entry of an order pursuant to subdivision (f)(5) or directing that
an answer to the motion be filed pursuant to (f)(6), whichever occurs
first. Leave of court is required for the filing of an amendment after the
entry of an order pursuant to subdivision (f)(5) or (f)(6). Notwithstanding
the timeliness of an amendment, the court need not consider new factual
assertions contained in an amendment unless the amendment is under oath.
New claims for relief contained in an amendment need not be considered by
the court unless the amendment is filed within the time frame specified in
(f) Procedure; Evidentiary Hearing; Disposition.
On filing of a motion under this rule, the clerk shall forward the motion
and file to the court. Disposition of the motion shall be in accordance
with the following procedures, which are intended to result in a single,
final, appealable order that disposes of all claims raised in the motion.
(1) Untimely and Insufficient Motions.
If the motion is insufficient on its face, and the time to file a motion
under this rule has expired prior to the filing of the motion, the court
shall enter a final appealable order summarily denying the motion with
(2) Timely but Insufficient Motions.
If the motion is insufficient on its face, and the motion is timely filed
under this rule, the court shall enter a nonfinal, nonappealable order
allowing the defendant 60 days to amend the motion. If the amended motion
is still insufficient or if the defendant fails to file an amended motion
within the time allowed for such amendment, the court, in its discretion,
may permit the defendant an additional opportunity to amend the motion or
may enter a final, appealable order summarily denying the motion with
(3) Timely Motions Containing Some Insufficient Claims.
If the motion sufficiently states 1 or more claims for relief and it also
attempts but fails to state additional claims, and the motion is timely
filed under this rule, the court shall enter a nonappealable order granting
the defendant 60 days to amend the motion to sufficiently state additional
claims for relief. Any claim for which the insufficiency has not been cured
within the time allowed for such amendment shall be summarily denied in an
order that is a nonfinal, nonappealable order, which may be reviewed when a
final, appealable order is entered.
(4) Motions Partially Disposed of by the Court Record.
If the motion sufficiently states 1 or more claims for relief but the files
and records in the case conclusively show that the defendant is not
entitled to relief as to 1 or more claims, the claims that are conclusively
refuted shall be summarily denied on the merits without a hearing. A copy
of that portion of the files and records in the case that conclusively
shows that the defendant is not entitled to relief as to 1 or more claims
shall be attached to the order summarily denying these claims. The files
and records in the case are the documents and exhibits previously filed in
the case and those portions of the other proceedings in the case that can
be transcribed. An order that does not resolve all the claims is a
nonfinal, nonappealable order, which may be reviewed when a final,
appealable order is entered.
(5) Motions Conclusively Resolved by the Court Record.
If the motion is legally sufficient but all grounds in the motion can be
conclusively resolved either as a matter of law or by reliance upon the
records in the case, the motion shall be denied without a hearing by the
entry of a final order. If the denial is based on the records in the case,
a copy of that portion of the files and records that conclusively shows
that the defendant is entitled to no relief shall be attached to the final
(6) Motions Requiring a Response from the State Attorney.
Unless the motion, files, and records in the case conclusively show that
the defendant is entitled to no relief, the court shall order the state
attorney to file, within the time fixed by the court, an answer to the
motion. The answer shall respond to the allegations contained in the
defendant's sufficiently pleaded claims, describe any matters in avoidance
of the sufficiently pleaded claims, state whether the defendant has used
any other available state postconviction remedies including any other
motion under this rule, and state whether the defendant has previously been
afforded an evidentiary hearing.
(7) Appointment of Counsel.
The court may appoint counsel to represent the defendant under this rule.
The factors to be considered by the court in making this determination
include: the adversary nature of the proceeding, the complexity of the
proceeding, the complexity of the claims presented, the defendant's
apparent level of intelligence and education, the need for an evidentiary
hearing, and the need for substantial legal research.
(8) Disposition by Evidentiary Hearing.
(A) If an evidentiary hearing is required, the court shall grant a prompt
hearing and shall cause notice to be served on the state attorney and the
defendant or defendant's counsel, and shall determine the issues, and make
findings of fact and conclusions of law with respect thereto.
(B) At an evidentiary hearing, the defendant shall have the burden of
presenting evidence and the burden of proof in support of his or her
motion, unless otherwise provided by law.
(C) The order issued after the evidentiary hearing shall resolve all the
claims raised in the motion and shall be considered the final order for
purposes of appeal.
(g) Defendant's Presence Not Required.
The defendant's presence shall not be required at any hearing or conference
held under this rule except at the evidentiary hearing on the merits of any
(h) Successive Motions.
(1) A second or successive motion must be titled: "Second or Successive
Motion for Postconviction Relief."
(2) A second or successive motion is an extraordinary pleading.
Accordingly, a court may dismiss a second or successive motion if the court
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 defendant or the attorney
to assert those grounds in a prior motion constituted an abuse of the
procedure or there was no good cause for the failure of the defendant or
defendant's counsel to have asserted those grounds in a prior motion. When
a motion is dismissed under this subdivision, a copy of that portion of the
files and records necessary to support the court's ruling shall accompany
the order denying the motion.
(i) Service on Parties.
The clerk of the court shall promptly serve on the parties a copy of any
order entered under this rule, noting thereon the date of service by an
appropriate certificate of service.
Any party may file a motion for rehearing of any order addressing a motion
under this rule within 15 days of the date of service of the order. A
motion for rehearing is not required to preserve any issue for review in
the appellate court. A motion for rehearing must be based on a good faith
belief that the court has overlooked a previously argued issue of fact or
law or an argument based on a legal precedent or statute not available
prior to the court's ruling. A response may be filed within 10 days of
service of the motion. The trial court's order disposing of the motion for
rehearing shall be filed within 15 days of the response but not later than
40 days from the date of the order of which rehearing is sought.
An appeal may be taken to the appropriate appellate court only from the
final order disposing of the motion. All final orders denying motions for
postconviction relief shall include a statement that the defendant has the
right to appeal within 30 days of the rendition of the order. All nonfinal,
nonappealable orders entered pursuant to subdivision (f) should include a
statement that the defendant has no right to appeal the order until entry
of the final order.
(l) Belated Appeals and Discretionary Review.
Pursuant to the procedures outlined in Florida Rule of Appellate Procedure
9.141, a defendant may seek a belated appeal or discretionary review.
(m) 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
(n) Certification of Defendant; Sanctions.
No motion may be filed pursuant to this rule unless it is filed in good
faith and with a reasonable belief that it is timely, has potential merit,
and does not duplicate previous motions that have been disposed of by the
(1) By signing a motion pursuant to this rule, the defendant certifies
that: the defendant has read the motion or that it has been read to the
defendant and that the defendant understands its content; the motion is
filed in good faith and with a reasonable belief that it is timely filed,
has potential merit, and does not duplicate previous motions that have been
disposed of by the court; and, the facts contained in the motion are true
(2) The defendant shall either certify that the defendant can understand
English or, if the defendant cannot understand English, that the defendant
has had the motion translated completely into a language that the defendant
understands. The motion shall contain the name and address of the person
who translated the motion and that person shall certify that he or she
provided an accurate and complete translation to the defendant. Failure to
include this information and certification in a motion shall be grounds for
the entry of an order dismissing the motion pursuant to subdivision (f)(1),
(f)(2), or (f)(3).
(3) Conduct prohibited under this rule includes, but is not limited to, the
following: the filing of frivolous or malicious claims; the filing of any
motion in bad faith or with reckless disregard for the truth; the filing of
an application for habeas corpus subject to dismissal pursuant to
subdivision (m); the willful violation of any provision of this rule; and
the abuse of the legal process or procedures governed by this rule.
The court, upon its own motion or on the motion of a party, may determine
whether a motion has been filed in violation of this rule. The court shall
issue an order setting forth the facts indicating that the defendant has or
may have engaged in prohibited conduct. The order shall direct the
defendant to show cause, within a reasonable time limit set by the court,
why the court should not find that the defendant has engaged in prohibited
conduct under this rule and impose an appropriate sanction. Following the
issuance of the order to show cause and the filing of any response by the
defendant, and after such further hearing as the court may deem
appropriate, the court shall make a final determination of whether the
defendant engaged in prohibited conduct under this subdivision.
(4) If the court finds by the greater weight of the evidence that the
defendant has engaged in prohibited conduct under this rule, the court may
impose one or more sanctions, including:
(A) contempt as otherwise provided by law;
(B) assessing the costs of the proceeding against the defendant;
(C) dismissal with prejudice of the defendant's motion;
(D) prohibiting the filing of further pro se motions under this rule and
directing the clerk of court to summarily reject any further pro se motion
under this rule;
(E) requiring that any further motions under this rule be signed by a
member in good standing of The Florida Bar, who shall certify that there is
a good faith basis for each claim asserted in the motion; and/or
(F) if the defendant is a prisoner, a certified copy of the order be
forwarded to the appropriate institution or facility for consideration of
disciplinary action against the defendant, including forfeiture of gain
time pursuant to Chapter 944, Florida Statutes.
(5) If the court determines there is probable cause to believe that a sworn
motion contains a false statement of fact constituting perjury, the court
may refer the matter to the state attorney.
Same as prior rule. Former rule 3.860, previously deleted, now found in
article 18, The Florida Bar Integration Rules.
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
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 excep-tional 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 court's 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 prisoner's contentions.
The prisoner or movant's motion for rehearing will be a part of the record
on appeal, thereby alerting the appellate court to the movant's
dissatisfaction with the trial court's ruling.
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 pleading 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 motion should
still be filed and ruled on by the court. Hence the former provision
authorizing the court to refuse to receive such a nonconforming motion has
been removed and words allowing the presiding judge to summarily deny a
noncomplying motion have been satisfied.
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
counsel's duties before withdrawal after judgment and sentence.
This amendment is necessary to make this rule consistent with rule 3.851.
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 Court's 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).
has been revised to address several issues identified by the Postconviction
Rules Workgroup in 2006 and by the Criminal Court Steering Committee and
the Subcommittee on Postconviction Relief in 2011.
New subdivision (d) is derived from the final two sentences formerly
contained in subdivision (c).
Subdivision (e) was added to codify existing case law on amendments to
postconviction motions and to comport with subdivision (f).
Subdivision (f) attempts to set out each of the different options that a
trial judge has when considering a motion under this rule. It reflects the
timeframe requirement of subdivision (b) and codifies existing case law
regarding timely but facially insufficient motions, partial orders of
denial, and the appointment of counsel. See, e.g.,Spera v. State, 971 So. 2d 754 (Fla)
Rule 3.850(g). Subdivision (g) was previously contained
in subdivision (e), but the language is largely derived from rule
Subdivision (h), formerly rule 3.850(f), was substantially rewritten.
Subdivision (i) is substantially the same as former subdivision (g).
Subdivision (j) allows both the state and the defendant the right to
rehearing and is intended to allow the court to correct an obvious error
without the expense and delay of a state appeal. See King v. State, 870 So. 2d 69 (Fla. 2d DCA 2003). The statement
regarding finality is consistent with Florida Rule of Appellate Procedure
9.020(i) and is intended to clarify the date of rendition of the final
order disposing of any motion under this rule.
Subdivision (k), formerly rule 3.850(i), was substantially rewritten to
simplify the review process in both the trial and appellate courts and to
provide for the efficient disposition of all claims in both courts. The
requirement of a statement indicating whether the order is a nonfinal or
final order subject to appeal is intended to ensure that all claims will be
disposed of by the trial court and addressed in a single appeal.
Subdivision (l), formerly rule 3.850(j), reflects the consolidation of the
subdivision with former rule 3.850(k).
Subdivision (n) is a substantial rewrite of former subdivision (m). (2007)