Criminal Appeal Process
UPDATED: February 11, 2020
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When you are found guilty by a judge or jury after a trial, you do not have to accept the finding of guilt. You can appeal the conviction and ask for a new trial. If you want to appeal a conviction, consult an experienced criminal appellate lawyer. A criminal appellate lawyer is a criminal defense attorney who specializes in appealing convictions. In some states, criminal appellate lawyers are certified as experts by their state bar organizations.
If you did not go to trial, but entered a plea of guilty or no contest (nolo contendere), you cannot appeal the judgment against you. In this situation, you must make a motion to withdraw your plea. You go through a different process to withdraw a plea than you do to file an appeal. Some states allow a limited indirect appeal that you can pursue without withdrawing your plea. The process is called filing a “writ of habeas corpus.” This type of appeal usually involves issues that you would not have known at the time of your plea. For example, you entered a plea of guilty or no contest to a drug case. Before the plea, you told your attorney that you were an illegal immigrant or that you were applying for naturalization. Your attorney failed to tell you that an adjudication of guilt could result in your immediate deportation or denial of citizenship. You may file a writ on the basis that your attorney did not tell you about all the consequences of your plea. The process for filing a writ is very similar to filing a regular appeal.
The appeals process is state-specific. Federal court has its own unique appeals process. As noted earlier, the filing part of the appeals process involves two main steps. The first step is filing a notice of appeal. The notice of appeal is sent to the court that entered the judgment against you. The notice of appeal states that you are challenging the court’s ruling. The notice further says that you are taking the matter before the next higher court that has jurisdiction. The notice of appeal is a relatively short document between 1-2 pages. Typically, you must file notice of an appeal within 30 days after you have been convicted.
The second step of the appeals process is filing the appeal with the appellate court. An appeal is a legal document stating that the lower court’s verdict was incorrect. When you file an appeal, you should also file a brief. This is called an “appellate brief.” A brief is a legal discussion of different points or cases. An appellate brief explains why the lower court’s ruling was incorrect.
Typically, an appeal should be based on mistakes of law rather than fact. A mistake of law would be that a judge gave the jury instructions incorrectly. A mistake of fact would be that you think that the jury did not consider all of the evidence. The mistake of law must be so substantial that it was a major factor in the judge or jury’s finding. A mistake of law can have to do with facts. One common mistake of law is called “factual sufficiency.” Essentially, your argument is that the evidence presented in trial was insufficient to allow the judge or jury to find you guilty.
For example, say you were tried for possession of cocaine. During the trial, no witness testified that the substance found was actually cocaine. In this situation, the District Attorney failed to prove an element of your charge.
There is usually a fee to file an appeal. In addition, when you file an appeal, you must cite to the record of the first case. In order to do that, you must pay to obtain a transcript of the record. If you do not have money to pay the fees, you likely still have the right to file a first appeal and obtain a transcript of the record. You can file a petition with the court that you do not have the means to pay for the transcript. If the lower court finds that you cannot pay the expenses for these expenses and a defense attorney, you will be determined to be “indigent.” The clerk of court will then provide you with a free copy of the record of your first case. The appeals process takes time. There is no right to a speedy appeal.
An appellate case is typically reviewed by a panel of judges. There are often three judges on a panel. The judges look over your appeal and brief. You are not typically called to appear at a hearing in which the court considers your documents. Instead of a hearing, at the request of either party, the appellate court can set your case for “oral argument.” This is where your lawyer has an opportunity to make arguments in person to the appellate court based on the appellate brief you filed.
The appellate court generally takes one of three main actions: vacate, affirm, or modify. If the judges decide by a majority that you are correct, they will vacate the lower court’s conviction. You are then entitled to a new trial in the lower court. If the judges decide that you are incorrect, the lower court’s conviction will stand. This means the lower court’s actions are affirmed. If the court decides that you were partially right, they may choose to modify your judgment. For example, say the law prohibits a fine in your case, but the lower court assessed you a fine. The appellate court may modify your judgment to cancel the fine. The remainder of the lower court's judgment will stand. If you disagree with the appellate court’s ruling, you can file an appeal to the next higher court. Use similar procedures to those outlined above. Be aware that the third court may have different appellate procedures than the court in which you have just appeared.
The act of filing an appeal does not automatically overturn the lower court’s ruling. Even if you win your appeal, you may not be eventually acquitted, or cleared, of the charges. Ask an experienced criminal appellate lawyer about whether you have a good case for appeal. Filing deadlines and procedures vary by state and by court. Most appellate courts require strict compliance. This means they will not forgive a late filing even if you decide to represent yourself. Seeking a qualified criminal appellate attorney in your jurisdiction will help you file a timely, proper appeal.