Articles Posted in Post Conviction

Many potential clients have come to me wanting to “do something” about their conviction or the conviction of a loved one. I’ve found that the post-conviction process can be difficult to understand, so here’s a primer that might help. Let me emphasize that this is just a basic introduction — to find out what you or a family member need to do after an actual conviction you’ll need to seek a consultation with an attorney.

Direct Appeals

  1. Direct appeals are limited to the trial record. That means only words typed by the court reporter or documents filed with the district clerk can be reviewed for potential issues to appeal.
  2. You can only appeal issues that were preserved. So your attorney had to object to something the State did, or file a written motion complaining about an issue. Normally an objection has to be timely — you can’t wait until the next day to complain about an objectionable question asked by the prosecutor. The upshot of “preserving” error is to make the trial court aware of the issue with enough clarity for the Court to make a ruling on it, AND for the Court to then actually make a ruling.
  3. Deadlines are an important part of the direct appeal. A notice of appeal must be filed quickly after the conviction. This secures jurisdiction for the appellate court. Once the appellate court has jurisdiction, it begins issuing deadline orders — first for the clerk’s and reporter’s records, then for briefs. These deadlines usually come in 30-day increments.
  4. After the appellate court receives the briefs from both the Defendant (now the Appellant) and the State, it will pick a submission date to consider the record and arguments.
  5. Oral argument is VERY RARE these days — most cases are decided on the briefs alone.
  6. The entire process takes months, usually between four to six, for a final ruling from the appellate court. The appellate court’s decision can itself be appealed to the Court of Criminal Appeals, but the higher court does not have to grant review of the lower court’s decision.

So, with these basic aspects in mind, it is easy to see that if you have a trial or litigate an issue in front of the court (like a motion to suppress evidence based on an illegal stop), then a direct appeal would make sense. You can appeal something even after pleading guilty, as long as the issue you want to appeal was fully litigated or presented prior to the guilty plea and the trial court certifies your right to appeal (you’ll know this because when filing out your plea paperwork there will be a specific document detailing your right to appeal).

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