Criminal Appeals & Post-Conviction
Filing an Appeal in Florida
Being convicted of a crime in the State of Florida can be a devastating experience with serious consequences. If you don’t agree with the outcome of your trial, you may consider appealing your conviction. At its core, an appeal is essentially a request for relief from an appellate court. In general, the role of an appellate court is to determine whether or not the trial court committed legal error.
"A direct appeal to an appellate court is a right to all those convicted in Florida. "
Unfortunately, the criminal appeals process in Florida is a complicated process, riddled with technical nuances, and strict deadlines. For these reasons, very few people attempt to file an appeal without being represented by an attorney. There are a number of circumstances that may constitute legal error, and make your case ripe for appeal. The following is a list of examples:
Can your case be appealed?
The authoritative body of law controlling the appellate process is the Florida Rules of Appellate Procedure. Specifically, Rule 9.140 sets forth the specific criteria for permissible appeals. Under the auspices of this rule, a defendant can appeal a final judgment adjudicating guilt, a final order withholding adjudication after a finding of guilt, an order granting probation or community control, orders entered after final judgment or finding of guilt, including orders revoking or modifying probation, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850 or 3.853, or an illegal sentence.
"Generally, a defendant can appeal a final judgment and sentence."
If the defendant entered a plea of guilty or no contest, he or she may appeal the final judgment only if she specifically reserved the right to appeal. An illustration of this would be when defense counsel files a motion to suppress evidence which is then denied by the court. The defendant may then subsequently plead guilty or no contest, specifically reserving her right to appeal the denial of the dispositive motion to suppress evidence. A defendant may also appeal a violation of the plea agreement, an involuntary plea, or a sentencing error—provided that these issues were properly preserved during the course of the trial proceedings. Further, a defendant may appeal a guilty or no contest plea if the trial court lacked jurisdiction to enter the sentence.
The criminal appeals process in Florida:
As previously mentioned, the appeals process is highly technical, and involves stringent deadlines. If these deadlines and procedural nuances are not observed, you may be barred from appealing your conviction and sentence. Once sentenced, a defendant has thirty-days to file a notice of appeal with the trial court. Within sixty-days after the Notice of Appeal is filed, the Clerk of Court prepares the record of your entire case. The record will include all official pleadings and transcripts of your trial and sentencing.
"The only matters that may be appealed, are those matters found in the record. "
When your case is appealed, there is no jury or trial. The only matters that may be appealed, are those matters found in the record. Accordingly, the appellate record is all that will be considered by the appellate court in rendering a decision; anything not in the record, will not be considered.
The initial brief, the answer brief, and the reply brief:
Once the record is complete and transmitted to the appellate attorney, the process of preparing the initial brief can commence. The appellate attorney will carefully read through the entire transcript, analyze the defendant’s case for legal issues, and conduct legal research. Under the Florida Rules of Appellate Procedure, the initial brief of the appellant (the defendant directly appealing his conviction) is due within 70 days of the filing of the initial notice of appeal. If counsel for the defendant needs additional time to file the initial brief, they can file a motion for extension of time with the appellate court. Appellate courts will typically give an additional thirty-days of time if a sufficient justification is presented with the motion. appellees (the State of Florida in criminal appeals) must serve an answer brief within 20 days after service of the initial brief. Finally, the appellant (the defendant) may serve a second brief, known as the “reply brief,” within 20 days after service of the appellee’s answer brief.
The defendant files his/her initial brief stating the justifications for relief, the State of Florida files an answer brief typically refuting all of the defendant’s arguments, and finally, the defendant may file a reply brief addressing the arguments raised by the state of Florida. Note that by filing a reply brief, the defendant is allowed to have the last word in the appellate process. While a reply brief is optional, most experienced appellate attorneys see it as a necessity to effectively presenting a case for appellate review. Appellate briefs in state court do not have colored covers. Additionally, service by mail is complete on mailing.
"While a reply brief is optional, most experienced appellate attorneys see it as a necessity to effectively presenting a case for appellate review. "
Oral arguments and beyond
In some cases, the appellate court will permit oral arguments—if such a request is made by either party prior to the filing of the last brief. Oral arguments are an opportunity to present arguments before the appellate court addressing any concerns the court may have. Typically, oral arguments are limited to 15-20 minutes, most of which is spent responding to questions posed by the court.
After all briefs are submitted and oral arguments are heard, the record and all filings are given to the three judge panel for review. The appellate court is not restricted by any time limits in rendering its decision. All interested parties have no choice but to wait for the court to issue its ruling. Generally, rulings are issued within a couple of months to a year, and sometimes longer.
Most district courts issue opinions on Wednesdays or Fridays. These opinions can typically be accessed online at www.FLCourts.org. However, written opinions are not always issued. In Florida, appellate courts tend to issue more "PCAs” than written opinions. PCA is an acronym for “Per Curiam Affirmed,” which basically means that the appeal was denied without a written opinion.
Yet, even if the court issues an opinion (or PCA) affirming the trial court’s ruling, all is not lost. There are still some additional avenues that may be worth pursuing. An appellant may file a motion for rehearing if he/she believes that the court overlooked issues of fact or law or if the issues presented are of great importance. A few other tools in an appellant’s arsenal at this stage are a motion for certification of an important issue, and a motion requesting a written opinion. Keep in mind, these motions should not be abused, and should only be filed when an appellate attorney believes there is just cause. Moreover, motions for rehearing are not opportunities to re-argue issues already raised during the appeal.
"Yet, even if the court issues an opinion (or PCA) affirming the trial court’s ruling, all is not lost. "
The court’s ruling becomes final when it issues a Mandate. The Mandate is issued after the time allowed for rehearing, or after the court rules upon a motion for rehearing.
The Law Office of William B. Wynne, P.L.L.C., represents clients in all criminal matters, including appeals and post-conviction actions. Consultations are free of charge, and we offer payment plans to those who qualify. Call today for your free consultation! (813) 532-5057
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