What is an Appeal?

At the most basic level, an appeal is a legal proceeding by which a case is brought before a higher court, in order to review decisions made by the lower court. An appeal is generally a formal request to the corresponding court of appeal, to assess the process or decisions made by the lower court, and ultimately change or modify a specific outcome or decision.

In general, an individual may only file an appeal after a final judgment has been entered. A final judgment is defined as:

 “The written determination…[b]y the judge who presided at trial (or heard a successful motion to dismiss or a stipulation to judgment), which renders (makes) rulings on all issues and completes the case unless it is appealed to a higher court.”

Burton’s Legal Thesaurus, 4E. S.v. "final judgment."

 There are certain circumstances under which an appeal may be filed prior to the entry of a final judgment.  Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 ('49). These are generally called interlocutory appeals. However, there is a strong incentive to limit interlocutory appeals in an attempt to avoid over burdening the legal system. Therefore, the circumstances under which an appeal may be filed prior to the entry of a final judgment, are limited to several situations.

When do I have the right to appeal a conviction?

A.    Final Judgment/Waiver of Appellate Rights

As detailed above, an appeal generally stems from a final judgment. In a criminal case, this normally occurs after a defendant has been convicted at trial and sentenced. It does not matter whether the guilty verdict was reached by a jury, or, by a judge during a bench trial. However, if a defendant voluntarily pled guilty, or entered into a plea agreement, this will greatly reduce their ability to appeal the conviction. As part of entering a guilty plea, a defendant waives the majority of their appellate rights. This does not completely preclude a defendant from appealing a conviction, but it greatly reduces their options.

B.    Notice of Appeal

After conviction, the defendant has a limited amount of time to file a “Notice of Appeal.” Notice of appeal is the process by which the Court of Appeal is given notice that a defendant intends to appeal a conviction. There is a limited time frame to file the notice of appeal. Generally, the notice of appeal will be filed by the defense attorney that handled the case during trial. Failure to timely file the notice of appeal can result in an inability to appeal your case.

C.    Conclusion

If you have been convicted of a crime, did not waive your appellate rights, and if the notice of appeal was timely filed, you generally have the right to appeal your case.

What is the appellate process?

A.    Record on Appeal

Once the Notice of Appeal has been filed, the trial court will prepare the “Record on Appeal.” (ROA) The ROA can be thousands of pages long, and will often require a great deal of time to review. It includes the Clerks Transcripts (CT’s) and the Reporters transcripts (RT’s). Once the appellate attorney receives the ROA, he or she will begin reviewing the record in hopes of finding issues that can be raised on appeal. Specifically, the attorney is searching for errors that harmed the appellant, and resulted in an unfair trial. There are many examples of these types of errors.

B.    Appellant’s Opening Brief (AOB)

Once the attorney has reviewed the record, he or she will begin writing the Appellant’s Opening Brief. In this brief the attorney will argue why the appellant’s conviction should be overturned. Writing the AOB is a complex and lengthy process. It will often take several months to complete. Once it has been finished, the AOB will be filed with the appropriate appellate court and served on all parties involved. It is important to note, that generally the appellate court will not consider any new evidence. The appellate court is bound by the record, and is not allowed to weigh new evidence in the case. The process under which new evidence is brought the court’s attention is very complicated and involves a different procedure.

C.    Response Brief

After the AOB has been filed, the government will respond the appellant’s brief. The response brief will attack the arguments made by the appellant, and will urge the court to uphold the conviction. Often times the government will argue that although and error made have been made by the trial court, it does not amount to harmful error. Therefore, the court should not intervene and overturn the conviction.

D.    Reply Brief

After the government has filed the response brief, the appellant is allowed to file a short reply brief. This is because the burden is on the appellant to convince the appellate court that harmful error occurred during trial. The reply brief is generally fairly short, and focuses on the rebuttal arguments made by the government.

E.     Oral Argument

In some cases, the appellate attorney will choose to argue the case before the appellate court. This process includes a hearing wherein the parties will argue the merits of the case. Prior to the oral argument, the court will have read the parties’ briefs, and will have several questions prepared for counsel. The arguments are generally time limited, and each party will have an equal opportunity to be heard.

What should you do now?

Our office dedicates a substantial amount of time and resources toward representing our clients on appeal. We handle matters ranging from minor misdemeanor convictions, to cases encompassing the most serious of criminal charges. Our firm handles both state and federal appeals. Mr. Mardock has assisted in the preparation and filing of a “Death Penalty Appeal.” Appeals involving a defendant that has been sentenced to death by the state, are amongst the most complicated and heavily scrutinized types of appeals.

If you, or someone you know, has been convicted of a crime and believes he or she is in entitled to an appeal, contact our offices and schedule an appointment. We will review the facts of your case, listen to your opinions regarding the ultimate outcome, and answer any questions you have regarding your options.