Appeals & Post-Conviction Proceedings
If an accused party is convicted at trial, he or she is entitled by law to a direct appeal. Federal appeals from the three Florida district courts are heard by the Eleventh Circuit Court of Appeals, based 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–contrary to popular belief–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, to determine whether the trial judge made an error, or errors, which undermined the defendant’s right to a fair and impartial trial (e.g., admitting impermissible government evidence, excluding permissible defense evidence, permitting service by unqualified jurors, giving misleading jury instructions, or the like).
How does an attorney argue a client’s case on appeal? First, after reviewing the record, 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 legal authority supporting the argument. The government then files an answer brief supporting its position; and the defense may, if it wishes, file a reply brief rebutting that 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 contributed to a conviction that otherwise may 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, such as a new trial or even dismissal of charges.
Normally, a person who pleads guilty or no contest gives up the right to a direct appeal, except to challenge the legality of the sentence. However, the client may later learn of an attorney error which prevented him or her from making an informed decision whether to plead guilty or proceed to trial (e.g., failing to thoroughly investigate the prosecution’s case, or to locate and interview favorable witnesses; giving inaccurate legal advice, failing to file appropriate motions; or the like). The client may conclude that, absent the error, he or she would have rejected the plea and taken the case to a jury. Or, if convicted at trial, the client may surmise that the jury would have rendered an acquittal, but for the error. This is commonly referred to as “ineffective assistance of counsel” (IAC).
If a client’s direct appeal is denied, or the client identifies a possible IAC claim, a post-conviction proceeding is the next course of action, and usually is the last one available. 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 IAC cases, the alleged violation is the denial of effective assistance of 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. Filings of this nature are relatively uncommon, but they do happen from time to time.
In the Federal courts, the post-conviction vehicle is a Petition for Writ of Habeas Corpus (also called a Motion to Vacate Conviction 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, to overturn a federal one. Either motion must be raised within one (1) year of the underlying judgment and sentence becoming final. For newly discovered evidence, the deadline is one (1) year from the date of discovery.
In Florida state courts, the pleading is also called a Motion to Vacate Conviction and Sentence, or Motion for Post-Conviction Relief. 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 but not exclusively occurs in death penalty cases. Rule 3.850 sets a two-year filing deadline; Rule 3.851, one year. (This is because, as Death Row inmates, Rule 3.851 applicants have a statutory right to court-appointed counsel, while Rule 3.850 applicants do not.)
Post-conviction relief may also be available outside those deadlines, based on newly-discovered evidence. However, the evidence must be such that it could have led to an acquittal at trial (or a rejection of a guilty plea), and it must have been unavailable at the time of trial through the use of due diligence. Once the client learns of the possible existence of such evidence, the time limits set forth immediately apply.
A post-conviction action is essentially a trial in itself. To identify the errors of prior counsel, the new attorney has to review the entire 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. If the trial court determines, based on review of the pleadings, that further inquiry is required, the court may set the matter for an evidentiary hearing. (If the record shows beyond question that the client is not entitled to relief, the petition may be dismissed.)
The evidentiary hearing is conducted by a judge, without a jury. As in a trial, witnesses testify and are cross-examined; documents and other items may be introduced into evidence; and counsel is entitled to make opening statements and closing arguments. 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 raised, 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 non-capital cases, a post-conviction client does not have the right to court-appointed counsel. Also, as you have seen, the law imposes strict deadlines for filing and arguing these motions; if they are missed, the chance for relief could be forever 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.