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Miami Criminal Defense Attorney > Criminal Defense > Appeals & Post-Conviction Proceedings

Miami Appeals & Post-Conviction Proceedings Attorney

If an accused party is convicted at trial, he or she is entitled by law to a direct appeal. Federal appeals from Florida are heard by the Eleventh Circuit Court of Appeals in Atlanta; state appeals, by the Third District Court of Appeals in Miami, or one of the state’s four other DCAs. (Appeals in state death penalty cases, however, go directly to the Florida Supreme Court in Tallahassee.)

In a direct appeal, the judges do not hear witnesses, re-weigh the evidence, or second-guess the jury verdict. Rather, they review the trial record, including all relevant exhibits and transcripts, in order to decide whether the trial judge made an error or errors which denied the defendant’s right to a fair and impartial trial (e.g., allowing the jury to see or hear improper government evidence, excluding proper defense evidence, permitting racial or other bias to affect jury selection, or the like).

To argue a client’s case on appeal, the attorney prepares an initial brief. The brief sets out the history of the case, summarizes the evidence and testimony at trial, points out any potential judicial errors, and cites the statutes and case law supporting the client’s position. The government then files an answer brief supporting its argument; and the defense may, if it wishes, file a reply brief rebutting the government’s position. If requested, the parties may hold oral arguments before the judges, who then work with their law clerks and each other to arrive at a decision.

If the appellate court finds no error, it upholds or affirms the conviction and sentence. If error is found, the court then decides whether or not the error led to a conviction that otherwise would not have occurred. If the answer is no, it is harmless error, and the conviction is affirmed. Otherwise, it is harmful error (also called reversible error), the court reverses the conviction and sentence, and the case is sent back to the trial court for any required remedy, up to and including a new trial or even dismissal of charges.

In the vast majority of cases, a person who pleads guilty or no contest gives up the right to a direct appeal. However, he or she may later learn that the attorney made mistakes which interfered with making an informed decision to plead (such as failing to thoroughly investigate the case, failing to interview and call favorable witnesses, giving inaccurate legal advice, or the like). The client may become convinced that, absent those mistakes, he or she would not have taken the plea, but would have insisted on proceeding to trial; or that he or she may would been acquitted at trial, but for those mistakes. This is the essence of “ineffective assistance of counsel.”

In the Federal courts, such a claim is handled through a petition for writ of habeas corpus or motion to vacate judgment and sentence both of which are authorized under the United States Constitution and Title 28, United States Code Secs. 2254 and 2255. The former section applies when the client seeks to overturn a state court conviction, the latter for a federal one.

In Florida state courts, the pleading is called a motion for post-conviction relief, also called a motion to vacate judgment and sentence. These procedures are regulated through Rule 3.850 of the Florida Rules of Criminal Procedure (or Rule 3.851, which applies in capital cases). In Florida, a petition for habeas corpus may be filed when the defendant is claiming ineffective assistance of appellate counsel. This usually occurs in death penalty cases.

Once a client’s direct appeal in either system has been denied, a post-conviction filing is the next course of action, and usually is the last one remaining. The argument, in essence, is that the client is being held in violation of the United States and/or Florida constitutions, and is thus entitled to release. In these cases, the violation is usually the denial of the right to effective legal counsel, which is established by the Sixth Amendment to the Bill or Rights and which all state constitutions also recognize.  A post-conviction filing may also allege that a recent, favorable change in some relevant law applies retroactively to the client, thus entitling him to release.

A post-conviction action is essentially a trial in itself. To identify the errors of prior counsel, the new attorney has to review the trial record, including transcripts, motions, and exhibits; locate and interview potentially favorable witnesses who were available but not called at trial; do relevant legal research, and so on. He or she then files the appropriate motion; the government files its response; and the case proceeds before the original trial judge, or a designated successor.

The hearing is conducted by a judge without a jury. Witnesses are called and cross-examined; documents and other items may be introduced into evidence; and counsel is entitled to make opening statements and closing arguments, just as in a jury trial. If the judge grants the client’s motion, the conviction and/or sentence are vacated, or thrown out, and a new trial or other appropriate relief is ordered. If the judge denies the motion, the client has a right to a direct appeal of the ruling. Depending on the issues, the motion may be granted or denied in whole or in part, and the case may be sent back for a new trial, or some other appropriate relief.

One must remember that, in most cases, a post-conviction client does not have the right to court-appointed counsel. Also, the law imposes strict deadlines for filing and arguing these motions; if they are missed, the chance for relief could be lost. Thus, if a client may have received ineffective assistance of counsel, either in a plea bargain or at trial, he or she, or a loved one, should reach out to an experienced attorney right away. The Tony Moss Firm is ready and able to assist you. Contact him at Tony@TonyMossLaw.com, or at 877.547.9407.

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