At an evidentiary hearing, the court hears testimony form witnesses and documents that support your brother's case. If you have testimony concerning the evidence presented at your brother's trial or any evidence concerning your former attorney, yes, you will testify.

I am sure all the witnesses will be subject to cross-examination. There will be no jury present, in most cases it will be only the judge, the court reporter, the DA representing the state, and the defendant with his defense attorney.

Both sides will have an opportunity to present evidence to support their position.

If his sentence is overturned, they will most likely remand his case back to the county from which it originated. At that point, he will be back at square one. Then he can either plea, the prosecutor can consider a deal with the stipulations of "time served" or a modified sentence, or he can go back to trial. If enough evidence was thrown out at the hearing, then the DA may even drop the case, as his case will have fallen apart.

This is how it is done in my state. I doubt that Florida is much different.

rewdiazepam

OK, thank you. We were unsure if I would get to testify or not. I have a lot to say lol. This hearing is being held in our county. We were unclear as to whether the judge just says "new trial" or modifies his sentence, meaning we thought perhaps the judge just orders something and it is what it is.

Hello,
I am from and convicted in Florida they do not like to let you go once you are in the system. Florida is one of those states that will extradite you from anywhere just to get you into the courtroom especially if you are male and charged with a felony. The state doesn't worry about the defense not doing it's job incorrectly and i'm sorry to say unless it was extreme you have to look at the judge who was there at the trial and is supposed to be impartial and able to recognize the ineffectiveness of counsel continued to sentencing. If the sentence is vacated and the state feels it has a case they will recharge him. Anytime served would be counted toward the new trial and he would still have the opportunity of a plea deal that may place him on probation at this point. Expect the worst in florida but pray for the best. I wish you and your family the best and an attorney that cares how he represents a client. I would also look into trying to get your brothers former attorney removed from his job.

Since I know a little about you brother's case the evidentiary hearing will be for both sides to present evidence concerning the post conviction relief claims the judge saw merit in. The State gets to enter evidence and testimony attempting to refute the claims and your brother gets to enter evidence and testimony supporting his claims.

There are stages to a PCR motion.

1. File a properly sworn motion making the type of limited claims that are allowed in post conviction relief.

2. Once filed the judge reviews the motion determining if the record refutes the claims.

3. If the record does not refute a claim or claims, the judge enters an order for the State to show cause as to why relief should not be granted.

4. The State elects to show cause or not.

5. If the State files something to show cause, the judge reviews it in light of the claims that have merit. If the State's filings still do not conclusively refute the claims then an evidentiary hearing is ordered. If the State elects not to file anything, an evidentiary hearing is generally ordered but the judge can grant the motion at this point.

6. Evidentiary hearing - See Rew's post above.

7. Judge makes a determination. If the motion is granted, there will be further proceedings.

Madbill is absolutely right, Florida hates to let anyone go once they are in the system and each step of the process is a milestone. From everything I've been told if you're granted an evidentiary hearing, you're golden for the motion being granted. In your brother's case I'm sure the motion is as good as granted seeing as how the order to show cause went over :)

Thank you all for the replies. My brother presented a very god PCR motion, with 15 grounds. If we can only prove half of those, I hear we will be good. One of his grounds on judicial misconduct was that out Judge who presided over motion to suppress hearing, wouldn't allow our attorney to complete his closing argument and she said these words "the detective did not believe him and I don't have to believe him". That seems pretty biased to me. lol