Post Conviction Relief
Once a conviction occurs, a person may appeal the decision of the court unless he or she specifically forfeited that right during a plea bargain. However, even if someone gives up the right to appeal that person may still appeal issues such as lack of jurisdiction or legality of the sentence. Appeals are a request to a court to resolve disputed issues of law or fact. An example of a disputed issue of law may be reading or wording of certain jury instructions or a trial court’s ruling on certain motions. A disputed issue of fact could be something like a person is convicted of murder, but the person they are accused of killing is actually alive.
Another avenue of post conviction relief is filing a writ of habeas corpus. Depending on local rules and the issues involved, a person may be able to file this at the same time they file the appeal. The basic difference between writs of habeas corpus and appeals are the basis of the claim. Most habeas corpus writs challenge the legality of a person’s detention. For example, a person’s Constitutional rights were violated in the court process and therefore are being held illegally. A requirement for most writs of habeas corpus is the exhaustion of all appellate remedies (i.e. appealing and losing at both the appellate and the state’s highest court) prior to filing. The purpose of this is to give the appellate courts a chance to remedy the mistake. Also, a person must be “in custody” to file such a writ. In custody can mean not only in physical custody of the state, but also on parole.
Appeals follow a different procedure than writs of habeas corpus. There are different requirements and time lines attached to writs. Each state has their own deadlines for filing appeals and writs. It is important to check the deadlines because appellate courts are very unforgiving if a deadline is missed.
To begin the appellate process, a person must file a notice of appeal with the trial court. This is a way of telling the court the defendant intends to appeal a conviction. Most states, such as California, do not require a defendant to identify the issues upon which they will appeal. They must simple file a notice with the clerk.
Once the notice is filed, the court reporter will prepare “the record”. This is the written verbatim transcript of all proceedings related to the case. Once the record is received, the appellate attorney can file a brief, which is a detailed explanation of everything they claim went wrong and the remedy sought. The state then gets to file a reply, which often claims no mistakes were made. After the state files, the defendant may file their own response.
An appellate court has several choices in deciding your appeal. It can affirm the judgment of the trial court, in which case your conviction and sentence remain unchanged. This is what happens in the great majority of cases. It also can modify the judgment. This usually means that the verdict remains the same, but some aspect of the decision, such as the sentence, or conditions of probation, is changed. Occasionally, the court will reduce a conviction to a lesser-included offense (i.e. manslaughter as a lesser-included offense to murder), instead of reversing the judgment. The reviewing court can also send the case back to the trial court with directions that require the trial court to do something further to determine whether the judgment should stand or be reversed or modified.
Finally, the reviewing court can also reverse the judgment of the trial court, in part or entirely, but this does not occur in the majority of the cases that it decides. Even if you gain a reversal, the case will probably not be over. It is rare for the appellate court to dismiss a case outright, even when it reverses the trial court’s decision. Usually the case is sent back to the trial court for a new trial. Depending on the circumstances of the reversal, the district attorney’s office may decide to retry the case on the original counts of conviction. In other cases, it may offer a plea agreement. On occasion, it will dismiss the charge.
The court will write an opinion stating whether the judgment is affirmed, reversed, or modified, and giving the reasons for its decision.
If the appellate court does affirm the trial court’s judgment, the appellate attorney should review its opinion carefully to decide if there are any further steps to be taken in the case. Although there are further steps that can be taken, in most cases each step after the first appeal is discretionary with the court.
A party dissatisfied with the decision of the reviewing court may petition their state’s highest court (if there is one beyond the initial appellate court) for review within a certain number of days after the decision becomes final. The number of days varies by state. The higher courts have discretion on whether to review decisions meaning they do not have to take a case unless they want to take it. If you or your appellate attorney believe your case contains a substantial federal question, such as the violation of a federal constitutional right, you may wish to consider filing a petition for review with the highest court to preserve your right to seek relief in federal court by means of a petition for a writ of habeas corpus in the federal district court, or a petition for a writ of certiorari in the United States Supreme Court. You may also file a petition for review if your case presents an important issue of state law or an issue on which the appellate courts have issued conflicting decisions.
