Being convicted of a crime can be a traumatic and grueling process. You might believe it’s the end of the line, but you may have the right to appeal. Appealing a conviction or sentencing must be based on legal errors that were made in your original trial in the lower court. Those errors will need to be specific and detailed and brought to the attention of the appellate court judges who will review your case.
The first step you must take in making an appeal is to file a Notice of Right to Seek Post-Conviction Relief in the circuit court where you were tried. This must be done within 20 days after your sentencing. If you fail to file this notice, you may forfeit your right to an appeal. The notice can be filed on your behalf by your defense attorney. In any appeal, it is wise to seek the services of an attorney who is experienced in the appeals process, which requires a different set of skills than standard criminal defense.
The Appeals Process
An appeal is not a new trial. It does not involve calling and cross-examining witnesses, presenting evidence, or conducting what is called “discovery,” which is the exchange of information and evidence between the two sides. It consists of the appellate court judges reviewing the facts of what occurred in your trial and identifying any legal errors that had a substantial influence on the outcome of your case or on your sentencing.
Therefore, you must have “grounds” for your appeal that are valid reasons for why the lower court’s decision or sentencing should be amended or overturned.
Grounds for appeals can be based on:
- Ineffective assistance of counsel; this is the legal term for having an incompetent defense lawyer, one who made mistakes serious enough to harm your case
- Plain error; these are outright mistakes made about various actions or rulings that occurred, from the judge overstepping discretion in sentencing to poor or missing jury instructions to any other type of legal mistake made by those involved, including the judge, the prosecutor, your attorney, or the jurors
- Issues involving evidence both before and during the trial; these may have been errors in how the judge ruled what evidence could or could not be presented or not enough evidence to justify a guilty verdict
- Mistakes or issues related to the selection of the jury
- Misapplication of the statute(s) that led to the conviction
- Illegally obtained witness statements or other evidence
An appeal is based on arguments called “briefs” that are written by your appellate lawyer and delineate what the original mistakes were. Both your appellate lawyer and the state’s lawyer will file briefs stating each side of the case. The state’s lawyer will argue why your conviction or sentencing should be upheld. The appellate court will review these and may call for oral arguments from the attorneys as well. After the lower court trial’s actions have been thoroughly reviewed by the appellate panel, it will make its decision.
Should the appellate court find that legal errors occurred in your original trial, it may overturn the lower court’s conviction, remand (send back) your case to the lower court for a new trial, or send your case back for a new sentence hearing.
Time Is of the Essence in an Appeal
Because you are under time constraints from the beginning with the proper filing of documents to the courts, you need to act quickly when making an appeal. At the Law Offices of Christopher J. Cherella, you can work with an attorney who has over 20 years of legal experience in handling criminal cases, including appeals. Attorney Cherella is also a former prosecutor with a deep understanding of how the other side works. You can discuss your appeal case at any time in a free, initial consultation.
Contact our firm at (414) 882-8382 or fill out our online request form to get started today.