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 of Florida:

(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.

(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 in a noncapital case or more than 1 year after the judgment and sentence become final in

a capital case in which a death sentence has been imposed 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, or

(2) the fundamental constitutional right asserted was not established within the period provided for herein and

has been held to apply retroactively, or

(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the

motion.

(c) Contents of Motion. The motion shall be under oath and include:

(1) the judgment or sentence under attack and the court which rendered the same;

(2) whether there was an appeal from the judgment or sentence and the disposition thereof;

(3) whether a previous postconviction motion has been filed, and if so, how many;

(4) 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;

(5) the nature of the relief sought; and

(6) 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.

(d) Procedure; Evidentiary Hearing; Disposition. On filing of a rule 3.850 motion, the clerk shall forward the

motion and file to the court. If the motion, files, and records in the case conclusively show that the movant is entitled

to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the

legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows

that the movant is entitled to no relief shall be attached to the order. Unless the motion, files, and records of the case

conclusively show that the movant is entitled to no relief, the court shall order the state attorney to file an answer or

other pleading within the period of time fixed by the court or to take such other action as the judge deems

appropriate. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant

has used any other available state remedies including any other postconviction motion under this rule. The answer

shall also state whether an evidentiary hearing was accorded the movant. If the motion has not been denied at a

previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing

is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion. If an

evidentiary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be

served on the state attorney, determine the issues, and make findings of fact and conclusions of law with respect

thereto. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was not

authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the

constitutional rights of the movant as to render the judgment vulnerable to collateral attack, the court shall vacate

and set aside the judgment and shall discharge or resentence the movant, grant a new trial, or correct the sentence as

may appear appropriate.

(e) Movant’s Presence Not Required. A court may entertain and determine the motion without requiring the

production of the movant at the hearing.

(f) Successive Motions. A second or successive motion may be dismissed if the judge 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 movant or the attorney to assert those grounds in a prior motion

constituted an abuse of the procedure governed by these rules.

(g) Appeal; Rehearing; Service on Movant. An appeal may be taken to the appropriate appellate court from the

order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying

motions for postconviction relief shall include a statement that the movant has the right to appeal within 30 days of

the rendition of the order. A petitioner may seek a belated appeal upon the allegation that the petitioner timely

requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through

neglect, failed to do so. The movant may file a motion for rehearing of any order denying a motion under this rule

within 15 days of the date of service of the order. The clerk of the court shall promptly serve on the movant a copy

of any order denying a motion for postconviction relief or denying a motion for rehearing noting thereon the date of

service by an appropriate certificate of service.

(h) 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 applicant’s detention.