10 Things You Need to Know About a Criminal Appeal

by Aaron Delgado
November 9th, 2018

10 Important Facts About Appealing a Criminal Court Decision

Most people believe that once they are convicted it is the end of the road, but that is not true. When a person is convicted of a crime in the trial court, that person can file a direct appeal challenging the conviction and sentence to the district court of appeal. It can be a tricky process to navigate the appellate process and most people are very unfamiliar with that process. Here are ten things that you need to know if you decide to pursue your appeal:

1. An Appeal is Not a Retrial

A criminal appeal is not a retrial and it is not an opportunity to reargue the facts of the case. The appellate court is not going to review any new evidence and there will not be a second jury, witnesses, or any other proceeding remotely resembling a trial. The process of a criminal appeal is completely different than a criminal trial.

So, What is an Appeal?

A criminal appeal is a process by which the appellate court reviews decisions of the trial court to determine if harmful error occurred. The appellate process focuses on interpreting law and applying it to the facts found in the trial court. Unlike at the trial level, where one judge presides over the case, at the appellate level, a panel of three judges is assigned to the case.

2. Challenging a Plea is Difficult

Aside from very narrow exceptions provided in the rules, a defendant may not appeal from a guilty plea or nolo contendere plea. That being said, "defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved." (See Florida Rules of Appellate Procedure 9.140(b)(2).)

Otherwise, the defendant may only appeal the following:

  • The trial court’s lack of subject matter jurisdiction
  • A violation of the plea agreement, if preserved by a motion to withdraw plea
  • An involuntary plea, if preserved by a motion to withdraw plea
  • A sentencing error, if preserved
  • As otherwise provided by law

3. Know Your Deadlines to File an Appeal

If you wish to file an appeal, timing is very important. You must file a Notice of Appeal within thirty days of when the order you are appealing is filed in the lower court, or within thirty days of the date an order on a motion tolling the time to appeal is filed. The filing of the Notice of Appeal alerts the appellate court of the party’s intention to appeal and initiates the appellate process. (See Florida Rules of Appellate Procedure 9.020(h).)

4. Record on Appeal

The record on appeal consists of all papers, exhibits, and documents filed in the trial court, including transcripts of the trial and any other substantive hearings that are necessary for your case. The first job of the appellant is to ensure the record is perfected. This means that any point of law that you are challenging on appeal must be supported by the record. So if you are challenging a motion to suppress order, the transcript on the hearing and any other evidence relevant to that finding must be included in the record.

5. Appellate Briefs

The briefs are the most important part of the appellate process as most of the cases are resolved solely on the briefs. An appellate brief is a written document that sets forth the issues of the case. The appellate briefs permitted to be filed by the parties in an appellate proceeding include the initial brief, the answer brief, and a cross-reply brief. Writing an effective appellate brief requires the appellant to show why the trial court made a mistake, supported by the record on appeal and the law. It is very important that an appellate attorney is experienced in brief writing as appellate briefs have many technical requirements.

6. Oral Argument

This is the only in-person contact an a criminal appeals attorney will have with the court to present the issues in the case. However, oral argument is not required; the appellate court can and may make decisions without hearing oral argument. A timely request for oral argument must be made within ten days after the last brief is filed. If oral argument is granted, each side will be allowed 20 minutes for oral argument, except in capital cases, where each side is allowed 30 minutes.

7. The Criminal Appeal Process is Slow

If you decide to pursue a criminal appeal, you must know that the process will be slow. The appellate courts do not have a set time period for the appeal to be resolved. After the briefing stage is completed, the appellate court will either set the case for oral argument or will set the case for conference. However, since each case is considered individually, the length of time for the appellate court to issue a decision will depend on the case and its complexity.

8. Appellate Court Decision

After the briefing, conferencing, and oral argument stages are complete, the appellate court will issue its decision in one of the following manners:

  1. If the appellate court agrees with the trial court, the decision may include a written opinion or may simply affirm the ruling without explanation. This can be one of the most frustrating parts of the appellate process as the appellate court is not required to explain its decision making.

  2. If the appellate court agrees with your argument, it will issue a written opinion reversing the trial court and will provide an explanation for why the trial court erred in its decision.

  3. In some cases, there may be a mixed result where the appellate court can both affirm and reverse in part.

After the appellate court has completed the review of your case, it will issue a mandate. A mandate is written notice sent to you and the trial court advising that the appeal is over.

9. Not All Error is Reversible Error

Trials are filled with error. In fact, most trials will contain some error. However, that does not mean that the error is a reversible error. You are not guaranteed a perfect trial, but you are guaranteed a fair trial. A harmful error is an error that negatively affected the outcome of the trial. If the appellate court determines harmful error occurred in your trial, that will result in a reversal. But if the appellate court determines that harmless error occurred in your trial, then the judgment will be affirmed, and the sentence must be served.

10. Motion for Rehearing

There are limited circumstances where the losing party may request the judicial panel to reconsider its opinion. If you lost your criminal appeal and believe that the court overlooked or misapprehended facts or law, then you should consider a filing a motion for rehearing or motion for clarification. These motions are governed by Rule 9.330, which sets forth strict guidelines for when a motion for rehearing is appropriate. The rule states as follows:

"A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding."

Generally, these motions are not favored by the court as many criminal appeal attorneys use this opportunity to simply reargue the merits of the case. In fact, parties have been fined for doing just that. A motion for rehearing should be used only when it is believed the appellate court overlooked or misapprehended a fact or issue, such as when the opinion shows that key evidence considered by the trial court was omitted from the record on appeal. If a party can identify a critical fact the court overlooked or misunderstood in making its decision, the moving party has a reasonable chance of success.

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