Category: Post-Case · Statute: Florida Rule of Criminal Procedure 3.850 · Source: Florida Legislature
Understanding Collateral Attack on Conviction in Florida
In Florida, a collateral attack on a conviction is a legal challenge launched after a defendant’s direct appeal has been resolved or the time to file one has expired. Unlike a direct appeal, which asks an appellate court to review the existing trial record for legal errors made by the judge, a collateral attack is a separate, secondary lawsuit. It is typically initiated in the original sentencing court and allows the defendant to introduce new evidence or raise constitutional issues that were not, or could not be, addressed during the initial trial or appeal.
These challenges are governed by specific Florida Rules of Criminal Procedure, most notably Rule 3.850 for felonies and Rule 3.853 for post-conviction DNA testing. Common grounds for a collateral attack include claims of ineffective assistance of counsel, prosecutorial misconduct, newly discovered evidence, or a fundamentally illegal sentence. Because the defendant has already been convicted and the presumption of innocence no longer applies, the burden of proof shifts entirely to the petitioner to demonstrate that a constitutional violation or miscarriage of justice occurred.
Post-Conviction Bail and Collateral Challenges
Securing release on bail during a collateral attack in Florida is extraordinarily difficult. While Florida Rule of Criminal Procedure 3.691 allows for supersedeas bond (post-trial bail) during a pending direct appeal, this right generally does not extend to collateral attacks. Because a collateral attack assumes the conviction is already final, Florida courts rarely grant bail pending the outcome of these motions unless the defendant can demonstrate an exceptionally high probability of success on a constitutional claim or severe, exigent circumstances.
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