If you were convicted of a crime and received an unfair sentence, then you may be looking at an appeal. This can be a complicated and long process, so it is best to understand as much about it beforehand as you can. If there was a problem with your trial then you should talk to your appellate attorney to find out what you can do next.
Defining Appeal
You may think that an appeal is a new trial, but that is not the case. An appeal is an extension of the original trial to correct a problem made by the defense attorney, judge, or prosecutor during the original process.
Because it is not a new trial, your lawyer doesn’t need to call witnesses to testify. There is also no new evidence. The only thing the court needs to decide is if there were any problems with the original trial and correct the sentencing if there was a problem.
Can I File an Appeal?
Anyone can file an appeal as long as it falls within 30 days of the judgment and sentencing from their original trial. Even though you can file an appeal, that doesn’t mean you will have a case for the court to review. There has to be a specific problem with your case that falls into specific criteria.
There are several different reasons that you could file an appeal. If there was evidence that the jury should have had but didn’t or if there was evidence entered into the trial that shouldn’t have been, that is a reason to file an appeal. You can also file an appeal if there was a jury member who was not fit to be on the jury.
Other reasons may include the jury not getting proper instructions, the judge ruling incorrectly, the judge denying a motion to suppress or dismiss, or the judge considering evidence that wasn’t admissible. The prosecutor behaving in a way to prejudice the jury against you is also a reason.
The Appeal Process
The first thing you have to do is to file a notice of appeal. You can file your own if you want, but it makes more sense to hire a lawyer to file for you. Because the appeal process is so unique, you will want the experience of a lawyer to help you navigate through the process. You only have 30 days between the end of your trial in which to file the appeal, so it is best to move quickly.
After filing a notice of appeal, your lawyer needs to get the record on appeal from the court clerk at your trial. This comprehensive document has all the papers the clerk filed during your case and the court reporter’s transcripts from the hearing, trial, and sentencing. This will help your lawyer know if there were any errors in the court case.
After that, your lawyer will need to do legal research using the information they found during the review of your court materials. If they find an error, they need to file an initial brief to submit. The legal arguments need to be outlined to support your case.
After the brief is submitted, you have to wait for the answer. The other side needs time to review it and make an argument against it. They determine if the arguments in the document prepared by your lawyer are valid and your case needs to go before the appeal review.
The next step is figuring out if you need to file a reply brief or request an oral argument from the opposing side. Since the brief shows the problems in the answer brief and formalizes the defense argument, they get the last word. The court can grant or deny your request for an oral argument. If your request is granted, then the lawyers go before a panel of three judges to talk about the written briefs.
If you get all the way through this process, you have made it to the final step of the process which is getting the final decision. This may take between three and six months. The court can reverse for a new trial, make a new sentence, dismiss the charge, or affirm the original conviction. If they affirm your conviction, you can file an additional appeal.
Watching the Oral Argument
Most oral arguments are able to be viewed by the public. The court website allows access for you to watch them. The court’s website also has the schedule for the oral arguments so you know when you can watch. You can also pick up a schedule from the court Marshall.
How Much Does an Appeal Cost?
You will have to pay a couple of different filing fees when you file an appeal. The first fee is when you file with the lower court and it is usually about $100. The second time you will have to pay a fee is with the reviewing court and is $300. If you are found unable to pay, this fee can be waived.
In order to file the notice of appeal, you have to pay the fee the day you submit the paperwork. The fee is not returned if there is a voluntary dismissal of the case. You can ask the lower tribunal for a waiver if you cannot afford to pay the fee.
How Long Does an Appeal Take?
The length of time for an appeal will vary depending on the details of the case. Some cases take more time to review because they are more complex. The speed at which your lawyer can submit all the documents will also play into how long the appeal takes. The appeals process usually takes somewhere between 8 to 18 months.
Winning an Appeal
Winning an appeal looks different for different cases. If the court agrees an error was made, then they may change your conviction or sentencing. They may also state that you are entitled to a new trial or hearing. You should talk to your lawyer about possible outcomes.
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