Once the trial court denies the defendant’s Motion for New Trial, the defendant has 30 days within which to file a Notice of Appeal with the clerk of court where the conviction occurred. Jurisdiction of the case is thereafter transferred to either the Court of Appeals or Supreme Court, depending on which court has jurisdiction over the issues in the case.
Basically, the appeal takes place in writing (occasionally oral argument is granted but not often). The appellate attorney will draft a brief that consists of a careful explanation of the facts with corresponding cites to record (the trial transcript, the hearing transcript from the Motion for New Trial and any other pleadings and documents that are part of the record sent to the appellate court) followed by a thoughtful legal argument citing to case and statutory law that supports the appellant’s reasoning as to why the case should be reversed.
The State’s attorney will then have the opportunity to respond to the Appellant’s brief and will follow a similar format. The appellant can then file a reply brief to the State’s arguments if it is warranted (and it usually is). Once all the briefing is done, the decision is then in the hands of the appellate court to review the legal issues and render an opinion regarding the case in writing. That process can take from a few to several months to complete.
NEED EXPERIENCED COUNSEL TO HANDLE APPEAL
Appeals are difficult but not impossible to win. If you are seeking an appeal it’s very important that you hire an attorney who is experienced with criminal appeals. You do not want to trust this important part of the case to someone who doesn’t really know what they are doing.
HABEAS CORPUS RELIEF
If the appeal is unsuccessful, it is possible for the defendant to file for what’s known as habeas corpus relief. A habeas is a civil proceeding filed in the county or jurisdiction where the defendant is residing (either where the prison is located or where he’s residing if he’s out) and it seeks essentially the same relief offered by an appeal. However, it cannot simply be a rehashing of the arguments made on appeal. New arguments and grounds for relief must be asserted.
If you or someone you know needs to file an appeal, please give me a call today for a free and confidential discussion about the matter. My office number is 404-474-2531.