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and does not duplicate previous motions that have been disposed of
by the court; and, the facts contained in the motion are true and
correct. The defendant must further 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. If the motion was
translated, it 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.
The most difficult and time-consuming task is finding the defendant’s
incarceration history and determining whether he or she should receive
credit for the time served in a particular jurisdiction. For example, a
defendant may be arrested in Pasco County for driving on a suspended
license while he or she was serving a probationary sentence in
Hillsborough County. If the defendant did not have a Hillsborough
“hold” placed on him for the violation or was not served with the
violation warrant while in custody, he may not be entitled to credit
for the time served in Pasco towards his subsequent sentence in
Hillsborough. But if the jail records indicate Hillsborough placed the
hold, then counsel must look at the Pasco disposition to see whether
anything in the sentencing in that case would cause the defendant to
not be able to use the credit in Hillsborough.
Once all the research is concluded, it’s a good practice to attach printouts
from the jail and clerk to substantiate the credit claimed in the motion.
Once a completed motion is signed, certified by the client, and filed
with the court, it proceeds in same manner as a Rule
3.850 motion — i.e., the court will review the motion
for sufficiency and, if sufficient, forward to the State
Attorney for a response. Depending on the response, it
will be granted, denied summarily, or set for a hearing.
If the motion was originally deemed insufficient by the
court for whatever reason, counsel will have 60 days to
file an amended motion.
Author: Adam L. Bantner, II - The Bantner Firm
NOV - DEC
2017
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HCBA LAWYER
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