Once the criminal appeals process has been exhausted, a defendant’s next option is a collateral review proceeding. Collateral review for incarcerated defendants typically refers to: 1) a Petition for Post Conviction; 2) a Petition for Writ of Habeas Corpus; and 3) a Motion to Reopen a Closed Post Conviction Proceeding.
A Petition for Post Conviction must be filed within 10 years from the date of the defendant’s sentencing at the Circuit Court level. Additionally, a defendant can file only one Petition for Post Conviction.
Post Conviction Petitions generally assert one or more of the following:
- Ineffective assistance of counsel, including Trial, Appellate, and/or prior Post Conviction counsel
- Prosecutorial misconduct for failure to produce all evidence
- The sentencing judge imposed an illegal sentence
It is a defendant’s right to have competent counsel represent him in all criminal proceedings. Ineffective assistance of counsel occurs when counsel commits a serious error or errors that cause prejudice to the defendant.
These errors may include things that the attorney did or did not do during the course of their representation of the defendant. To show the defendant was prejudiced by the attorney’s action(s), it must be proven that there is a significant possibility that the outcome of the defendant’s proceeding would have been different were it not for the error(s) by counsel.
If it can be proven that the defendant was provided with ineffective assistance of counsel, it is, in the Court’s eyes, as if the defendant was without any counsel at all. This permits the Court to order the defendant either a new trial or some lesser form of relief, including a new sentencing hearing or allowing a belated appeal or motion to be filed.
Post Conviction cases are complex, requiring extensive review of the entire case history, transcript and appellate record. You need an experienced, qualified attorney to handle your Post Conviction and/or Collateral Review.
We offer a post trial/post conviction review process for a flat fee to analyze your post trial/post conviction options and remedies. Contact us to schedule a post-trial/post-conviction review.