Q & A About Appeal And Post-Conviction Relief

If you have been convicted of a crime and you believe the court made a legal error during the conviction process, you may have grounds to file an appeal or seek post-conviction relief. The appeals process can be a difficult one, so you will want experienced attorneys on your team to give you effective legal counsel and help you with the next step in your appeal.

Our lawyers at Brown, Suarez, Rios & Weinberg, P.A., have more than a decade of experience and knowledge and will fight aggressively for your case.

To help explain the appeals and post-conviction process, here are some common questions we hear from clients. Of course, everyone's circumstances are unique, so talk to one of our lawyers about your situation.

Q: What is an appeal? If my loved one has lost a trial, is an appeal like a second trial where the court can hear new evidence or mistakes from the first trial can be corrected?

A: There are a lot of misconceptions about appeals. An appeal is not a second trial. Many appellate judges will often refer to their courts as "courts of error." What this means is they are looking for the parties to identify errors made by the judge during the trial or improper arguments made by opposing counsel. Appellate courts will not look at new evidence. They want to see in the "record" (the transcripts of the original trial) where an error occurred. If the appellant can identify enough errors, or at least one very serious error, during a trial, he or she may be granted a new trial or have his or her conviction reversed completely. This is the reason trial attorneys often make arguments by stating "for the record," even if the trial court is ruling against them. They are preserving the important right of a defendant to have an issue reviewed by a higher court if he or she gets a bad result at trial.

Q: If I have lost my trial and have been sentenced, what, realistically, is my chance of getting that all reversed on an appeal?

A: This is one of the hardest questions for an appellate attorney to answer for a prospective client. This is especially true in cases in which a grieving loved one is looking for any hope because a family member has just been sentenced to a lengthy prison term, for instance. The simple truth is the best time to win a case is at the first trial. Appeals are generally (but not always) a long shot. Any attorney who tells you, without knowing anything about the case, that you have an excellent chance to win your appeal if you just hire him or her should be viewed with suspicion. As much as possible, the attorney should be reviewing the entire history of the case and interviewing the defendant about the trial. It is helpful if the attorney interviews the lawyer who defended the case and sometimes even the case prosecutor. Only after doing these things can an attorney identify potential areas that could lead to the reversal of a conviction on appeal. Appellants who have strong issues on appeal, of course, have a greater chance of winning their appeal. These issues should be discussed with the lawyer before you hire him or her. When you hire any lawyer for any matter, you should ask tough questions about his or her experience in the area and results obtained for other clients.

Q: How long will my appeal take?

A: Again, there is no simple answer to this question other than to say that appeals are not fast. It will often take a few months just for the clerk to assemble the transcripts and other court records necessary to complete the "record on appeal," which is the entire story of what happened in the lower court. The process varies slightly between state and federal courts. However, generally, once the record is put together, the lawyer for the appellant (the person appealing the lower court outcome) will write the first, or "initial," brief. A brief is a formal written argument summarizing the relevant facts of the case along with the errors counsel has identified. The attorney should identify prior court decisions and statutes that directly apply to the error or errors he or she argues occurred. The idea is to convince the appellate court that the law favors the appellant and the errors below compel the court to reverse the result. The other side then gets to respond. The appellant's lawyer can then write a reply to that response. Finally, in most cases, the panel of judges will grant oral argument. This is an excellent opportunity to appear in person to forcefully argue the strongest points of the case to the panel of judges who will decide it. Due to the complexity of this work, there are often breaks of two or three months between each part of this process. Therefore, it is common that appeals take one to two years to be decided.

Q: What are my options if my appeal is denied?

A: There are generally three. One is called "collateral attack," and in state cases, this means appealing to the federal courts on constitutional grounds. This will not be discussed further here as this is a limited practice area that this firm does not engage in. The second is appealing to an even higher court. For example, felony cases in Florida state courts are appealed from the circuit to the district court level. If you lose at that level, you can appeal to the Florida Supreme Court. To do so, however, you must have been given written reasons why you lost by the district court. Sadly, most appellants who lose at the district court level do not receive any specific reason why the panel has rejected their claim. For most of them, their appellate rights are effectively terminated at that point. The last and most common final remedy is "post-conviction relief," which shall be discussed below.

Q: What is a petition for post-conviction relief and how does it work?

A: Defendants who have exhausted all other remedies can apply back to the original court (usually the state circuit court) for relief for various reasons. It should be noted this can be done prior to all other relief being exhausted, but in most cases, it is the last step. Part of the reason for this is, frankly, this is probably the most difficult type of relief to get. There are several grounds to raise these petitions. However, the two most common and relevant to this discussion are petitions alleging newly discovered evidence or ineffective assistance of counsel.

Q: What constitutes newly discovered evidence that would allow me to get a new trial?

A: Newly discovered evidence, to put it simply, is evidence that could not have been discovered by either the defendant or his lawyer during diligent preparation for the original trial. This does not include witnesses who came forward with information who could have been talked to before the first trial. This does not include something that occurred to a witness after the first trial was concluded. It only includes things that would have changed the original outcome that could not have been knowable to the defense at the first trial. The most famous example of this type of evidence comes from the wonderful work of the Innocence Project. This group has been successful in compelling the testing of physical evidence for DNA that led to proof that a defendant did not commit the offense. In some cases, the Project has led to the discovery of the true perpetrator. Because these cases involved trials that occurred before DNA analysis was being done, the courts properly held it was newly discovered evidence. Other examples include witnesses coming forward to say they had lied (for example, about identifying a defendant in a lineup) because they were pressured to do so. Other cases have featured the discovery of evidence that was willfully concealed from the defense by prosecutors or law enforcement officers that would have led to an acquittal.

Q: If I believe I lost my trial because of the performance of my lawyer, how do I prevail on a petition alleging ineffective assistance of counsel?

A: A famous judge in our part of the state, the late, great Jack Schoonover, used to say, "Your client is entitled to a fair trial, not a perfect one." Lawyers are people, and even the best and brightest make at least one little mistake in probably every case they try. Furthermore, there often come times in a trial where a lawyer must make a judgment call about whether to ask a certain question, call a certain witness or make a certain argument. Often these decisions must be made with a moment's notice and they are made based on instinct, when considering the general flow of a trial. A Monday morning quarterback can always slow down a game film and point out what someone could have done differently that may have led to a different outcome. This is not how these motions are analyzed by trial courts. As referenced above, these petitions are long shots (more so than direct appeals) and any attorney who says you have a great chance of prevailing without knowing anything about your case is doing you a disservice.

The standard to get a new trial based on lawyer performance is a stringent one. It is based on the Supreme Court case of Strickland v. Washington and it contains two parts. The first is known as "deficient performance." The second prong requires that the petitioner show that "but for" the deficient performance, he or she would have won, or at least obtained a better result. Trial courts usually turn the analysis on its head and if a petitioner cannot not show the probability of a better outcome, they will decline to heavily scrutinize the lawyer's work for deficiency.

In a sense, this requires the trial court to review the entirety of the first case to see if the errors alleged, if they had not been committed, would have changed the outcome. This is a very high hurdle. Often trial courts will deny these petitions simply because they will hold that "the evidence of guilt was overwhelming" and therefore, the failure of the trial attorney to call, for example, an eyewitness who would have said he was not at the scene of the crime would not have changed the result even if the failure had been deficient.

If the defense can overcome the bar of the "but for" test, then it must demonstrate deficient performance. As demonstrated above, this is more than just second-guessing strategic decisions or minor errors made in the heat of battle. This is the criminal law cousin to medical malpractice. The burden on the petitioner is to demonstrate that his or her lawyer's actions fell below the standard of conduct of any competent professional. Although the bar here is very high, there are cases that meet that bar. Some examples are death penalty cases in which counsel failed to show a jury available evidence that a defendant suffered from a serious, life-long mental disease. Or perhaps in a robbery or burglary trial with identification issues, an attorney failed to speak with and subpoena some highly credible and respected folks who would have testified that the defendant was at another location when the crime occurred.

Just like trial verdicts and sentences, denials of petitions alleging ineffective assistance can be appealed to a higher court.

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If you have more questions regarding the appeals process and post-conviction relief, reach out to one of our experienced lawyers at Brown, Suarez, Rios & Weinberg. We offer a risk-free initial consultation for those seeking counsel on their case. All you need to do is contact our office in Fort Myers by email or call one of our other southwest Florida locations.