Vacating Criminal Convictions

By: Mark Eiglarsh

The Telephone Call

One of the more common calls that I receive from civil lawyers goes something like this: "Mark, I have a client who pled "guilty" to criminal charges some time ago and he now faces serious adverse consequences. Is there anything that you can do to assist?" They typically have a client who pled guilty to a criminal charge and now, often years later, faces deportation or some other serious ramification. They want to know if there's a way to return to court and have their conviction set aside. Depending on the circumstances, the answer may be "yes."

Possible Relief

The way to vacate a criminal conviction on behalf of defendants in state court is by filing a "Rule 3" motion pursuant to Florida Rule of Criminal Procedure 3.850. Rule 3's are filed on behalf of defendants who are looking to set aside their convictions after previously pleading "guilty," "no contest" and/or after a finding of guilt as a result of a trial. These motions are the only vehicles to secure relief for both custodial and noncustodial defendants. Wood v. State, 750 So.2d 592 (Fla. 1999)

Generally, Rule 3 motions must be filed within two years after the sentence becomes final. The motions must be sworn to by the defendants and must state all potential grounds to vacate. Some of the grounds on which Rule 3 relief is sought includes, but are not limited to: ineffective assistance of council; failure by counsel to conduct a diligent factual and legal investigation; misadvice by counsel regarding the amount of time the defendant will serve; breach of plea agreement; failure by counsel to investigate or present a viable defense; failure of the court to determine a factual basis for the plea; and failure to advise of a plea offer that would have been accepted. When alleging ineffective assistance of council, the defendant bears the burden of proving, among other things, that if he had gone to trial, he would have had a viable defense that probably would have resulted in an acquittal. Hill v. Lockhartt, 474 U.S. 52, 58 (1985).

Probably the most common claim on which Rule 3's are based occur when defendants were not told that they would be subject to deportation as a result of their conviction, in violation of Fla. R. Crim. P. 3.172(c)(8). Unfortunately, most individuals who are threatened with deportation after their "guilty" or "no contest" pleas aren't informed of their predicament until more then two years has elapsed since their conviction. Fortunately, the leading case on this issue, Peart v. State, 756 So. 2d 42 (Fla. 2000) (successfully argued by Benjamin Waxman, one of my partners), provides relief for defendants beyond two years from the day of their pleas. In Peart, the Florida Supreme Court held, among other things and with some exceptions, that defendants have two years to file their Rule 3 beginning from the time that they learn of the deportation threat. To prevail, a defendant must show: 1) that he didn't know that the conviction would result in deportation; 2) that he was threatened with deportation because of his plea; and 3) had he known of the possible deportation consequences, he would not have entered the plea. Peart, 754 So. 2d at 47.


If the court grants a Rule 3 motion and the conviction is vacated, the defendant goes back to square one, allowing the state attorney's office to re-prosecute the criminal charge. Judges may choose to take a defendant back into custody and require him/her to post a bond. Most often, either the prosecutors are unable to still prove their cases or defendants choose to accept pretrial diversion or pleas that would avoid the detrimental consequences that led them to file the motion to vacate.

Client Reviews
"Mark's assisted me on 3 separate instances with exceptional results. He treated me with respect and counseled me without judgment. He answered all my questions and removed any doubt during the lengthy legal process. Mark's courts skills and legal expertise places him amongst the top in his profession." D.A.
"I chose Mark Eiglarsh to serve as my Miami criminal defense lawyer during my DUI trial last month. He was great. We actually never had to go to trial because he worked out a bargain that was very nice." H.G.
"Mark Eiglarsh was a great help with my recent case, and I am very glad that he was recommended to me in Miami. He knew exactly what to do as soon as I was charged, and I was eventually released after he had the charges against me dropped. Amazing job, overall." J.G.