Appeals Process

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1. What Is An Appeal?

An appeal is a filing with a court with authority to review a lower court’s actions in a case, believed to have been taken in error.

2. What Are The Most Common Reasons Appeals Are Filed?

Most commonly, in criminal appeals a defendant has lost at trial, and asks the appellate court to overturn the verdict because of irregularities that occurred that affected the jury’s verdict.

3. What Types Of Criminal Convictions Do You Handle In Appeals Cases?

I handle all types of convictions on appeal, from misdemeanors to felonies.

4. What Qualifies For An Appeal?

Generally, there must be an appropriate ground from which to appeal. For example, a defendant whose plea is properly entered and is sentenced according to the law, who then has a change of heart and wants to appeal the sentence, does not have appropriate grounds to appeal. Also, if a trial is conducted properly, all rulings made by the trial court were valid, the jury returned a guilty verdict, and the judge sentenced the defendant lawfully, a defendant may be a circumstance where there also are no legal grounds to enter an appeal. Many times, however, a client will not know about legal issues that can be pursued on appeal until a transcript of the trial is made and thoroughly reviewed for error. Thus, a client is usually best served by at least having an appellate attorney review their case to see if an appeal can be taken.

5. Are There Any Convictions That Can’t Ever Be Appealed?

While any case may have a notice of appeal filed, again, if there are insufficient grounds for appeal the appeal may be summarily dismissed. If any attorney is appointed to appeal a case and after reviewing everything finds no legally justifiable reason for appeal, that attorney may file what is known as an “Anders” brief, outlining for the appellate court anything in the case that might even remotely be in question, and then ask for withdrawal from further representation.

Also, a conviction based upon a properly entered voluntary plea and a legitimate, legally imposed sentence would provide no legitimate legal basis to appeal.

6. What Makes Up A Good Case For An Appeal Vs. One That Probably Won’t Be Eligible?

Whether mistakes are reflected in the record. For instance, if the judge ruled inappropriately on a substantial issue. Or perhaps evidence was excluded that should have been seen or heard by the jury; or similarly, if evidence was introduced before the jury that should have been excluded. Any of the foregoing examples would provide for appellate review and legitimate grounds to appeal.

7. Can You Appeal A Case Where You Plead Guilty?

Rarely. Of course, a defendant may bring a “collateral attack” on the conviction, if the defense lawyer provided ineffective assistance of counsel in some fashion that substantially affected the outcome of the case. In Florida state court, such a claim is normally made by filing a petition pursuant to Florida Criminal Procedure Rule 3.850.

Of course, if the sentence given is illegitimate for some reason, a defendant also has the ability to ask for review by filing a motion to correct a sentence. The grounds and procedure for such a motion are found at Florida Criminal Procedure Rule 3.800.

8. What Steps Must A Person Follow To Appeal A Prior Court Conviction?

Most importantly, the individual desiring to appeal needs to alert their attorney of that desire, so that the attorney can file a notice of appeal on the client’s behalf. Once the time for filing an appeal expires, so does the right to appeal, unless an appellate court agrees to allow a defendant to file a late, “belated” appeal. A right to file a belated appeal will not be granted unless good cause exists for the late filing. One example is the incarcerated defendant who makes a request of his attorney to file an appeal and the attorney failing to do so.

9. What Is The Timeframe Someone Has To Appeal?

Generally, thirty (30) days for most direct appeals. Depending on the court and the issue, the time period may be longer or shorter. It is best to know what the time period is before the case concludes.

10. Who Are The Players Involved In The Appeals Process? (judge, appellate court, attorneys, etc.)

On a criminal appeal the “players” normally are the appellate attorneys for the defendant and the State, and a court of appeals panel, usually consisting of a number of appellate judges, who will decide the appeal. In cases that may impact a larger group or class, outside organizations also may file briefs (written documents outlining a legal position and requesting the appellate court rule in a particular way). A group or organization that files such a brief is known as “amicus curiae,” which literally means, “friend of the court.”

11. What Factor(S) Will Lead To An Appellate Court Reversing A Decision?

First, there must be error found in the trial. Secondly, such error must be found to be “harmful,” i.e., that there is a substantial likelihood that the error influenced a jury’s verdict. If so, reversal is likely. While some mistakes that occur during a trial are considered to be “harmless error,” if the law on the subject (the legal precedent) shows that the error is significant, then reversal can occur. Bear in mind that revsersal usually does not vindicate the defendant, since the State is free to have a new trial in the case, without whatever caused the error in the first trial.

12. If A Party Loses Their Case, Are There Possibly Further Steps They Can Take?

If a criminal defendant loses at trial, the trial court will conduct a sentencing hearing. Such a hearing can take place immediately after the jury verdict or be set into the future to allow the parties to present evidence at sentencing. Therefore, it is important to make sure that any mitigating circumstances or witnesses be available for a sentencing hearing to assist the defendant in presenting a persuasive sentencing argument to the trial court. Also, the defendant’s trial attorney may file a motion for a new trial, showing the trial court errors that prevented a fair determination of the evidence by the jury. Even if this motion is denied, it will help the appellate attorney to frame arguments on the defendant’s behalf on the appeal.

13. Does The Filing Of An Appeal Automatically Stay Execution Of Judgment?

Normally it does not. Since an appeal cannot be taken until the case is final—in the case of a criminal appeal after a sentence is imposed–a defendant generally will begin serving the sentence while the case goes through appeal.

14. Does Someone Remain In Jail/Prison While Their Appeal Is Heard Or Can They Remain Out On Bond?

In certain cases, a person can have an appeal bond posted that will allow them to remain free until the appeal in finalized. It is best to discuss this issue with a trial attorney well in advance of trial.

15. How Long Does An Appeal Take?

Most non emergency appeals take many months, if not years.

16. What Makes Your Firm Unique In How You Handle Appeals?

We provide give the same high level of care and determination to appellate clients that we provide to clients on the trial level. We dedicate ourselves to working tirelessly in determining the issues, finding the case law, and strongly advocating our client’s position, so that our client has the opportunity to see justice prevail on their appeal.