Criminal Defense - The Difference Between Appeals and Post Conviction Relief Applications

Criminal Defense - The Difference Between Appeals and Post Conviction Relief Applications


Innocent people go to jail. Unfortunately, some people are in jail today because they did not hire a qualified criminal defense attorney capable of handling their case in a jury trial. When this occurs, all hope is not lost. The accused can seek to have his conviction reversed and a new trial ordered through the appellate process. This process consists of appealing the trial court's conviction and, if necessary filing an application for post-conviction relief with the trial court. These two procedures are similar but distinct and, often, people get them confused.

Anyone convicted of a crime has 30 days from the day his sentence becomes final to file a written notice of intent to appeal his case. In Louisiana, a criminal sentence will become final automatically within 30 days it is imposed or 30 days after a motion to reconsider sentence is ruled upon. Once the notice of appeal is filed, the criminal defense attorney handling the appeal must also designate what pre-trial hearings and portions of the trial that need to be transcribed and made part of the appellate record. Once the transcript is prepared and court pleadings and minutes are certified, the judicial district clerk of court will lodge the official trial court record with the court of appeals. Upon receipt of the official record, the court of appeals will issue a briefing schedule to the defense attorney and the district attorney advising them when their briefs are due. Any side wanting to orally argue their case before the court of appeals must file a written request to do so within 30 days of the record being lodged with the court of appeals. At some point the Court of Appeals will issue a ruling. The losing party has the option of petitioning the Louisiana Supreme Court to review that decision. The formal process to do this is called a writ of certiorari. Neither the defendant nor the State has an automatic right to appeal to the Louisiana Supreme Court on any conviction that does not involve death penalty.

An appeal is simply a review of any judicial rulings made before or during the trial itself. During an appeal, the focus is solely upon the rulings of the trial judge. Any motions to suppress evidence or statements and any pre-trial motions in limine that were litigated and lost before the trial can be reviewed by the Court of Appeals to determine whether the judge made the proper ruling and, if not, whether the incorrect ruling will justify reversing the conviction and having a new trial granted that conforms to the proper evidentiary ruling. Likewise, any objections that were made by the defense attorney and overruled by the trial judge can also be reviewed by the court of appeals. Again, if the higher court believes the trial judge was wrong then a new trial may be ordered if the error causes the court to lose confidence in the verdict. It is important to note that an appeal is not the time to present new evidence. The appeal simply seeks to review the trial court's ruling upon pre-trial motions and any trial objections. Think of it as "instant replay" and not a "do over."

Any newly discovered evidence can be presented on an application for post-conviction relief after the appeal is lost. This application is filed at the trial court. Anyone seeking to introduce newly discovered evidence must show how the evidence could not have been discovered before trial through the exercise of due diligence. If the court believes the newly discovered evidence would have impacted the verdict a new trial can be ordered. Additionally, an inmate can challenge his trial attorney's ability to handle his case correctly on post-conviction. He will do this by raising a claim for ineffective assistance of counsel. Any claim for ineffective counsel must show that the trial lawyer's handling of the case was below the standard of care expected for a competent attorney and that any errors caused by the lawyer's incompetence isn't deemed "harmless." In simpler terms, the inmate will need to show that a competent lawyer would have handled his case differently and, if handled correctly, we cannot say the jury would have convicted the defendant. If the application is granted a new trial may be ordered.

Anyone seeking to file a post-conviction application in Louisiana must do so within 2 years from the date his conviction becomes final. In most cases, the conviction becomes final the date the Louisiana Supreme Court denies granting a writ of certiorari. But, in cases where the writ is granted, it is 2 years from the date of judgment. Some people do not seek review to the Louisiana Supreme Court. The judgment in those cases becomes final 2 years after the date of ruling by the Circuit Court of Appeals. In a few instances people will challenge the validity of their guilty plea on post-conviction. The prescriptive period for those cases is 2 years from the date their sentence becomes final. Despite the 2 year time limitation for filing a post-conviction relief application, we recommend that our client's file their claims during the first year. This recommendation is made to preserve the client's right of having their claims preserved for review by a federal district court should we be unable to obtain relief at the state court level.

If someone you know has been wrongfully convicted, you need an attorney who has briefed complex appeals and argued them before state and federal courts of appeal. If you know someone who is seeking to file a post-conviction relief application, you will need a criminal defense attorney with significant jury trial experience to present the newly discovered evidence and/or establish the ineffective handling by the trial attorney.

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