We tend to think of our right to appeal the sentence as being automatic, but that is not always the case. You need to have a real case to appeal the sentence – either some principle that was incorrectly applied, new evidence to be admitted, etc.
In order to understand whether or not you have a real case for appeal, it is best to consult an appellate attorney. They will tell you what your options are. In this post, we will go through what will happen if you do have a case to lodge an appeal.
Is it Automatic?
No. A notice of appeal and an accompanying brief must be filed. If you originally pled guilty, your appeal will be declined.
The Process
The attorney will have to file the notice of appeal timeously. If this is not done in a timely manner, you will not get a second chance unless there was a really compelling reason as to why not.
The attorney will file the notice with the appropriate appellate or Supreme court and then request transcripts of your trial. These transcripts will be used to write up the brief arguing for the case to proceed to oral arguments.
When Oral Arguments are Approved
Your attorney will present their case to a judicial panel. This will be solely based on procedural evidence. The judges will consider whether or not the verdict was correct in terms of the evidence provided and that there was no violation of due process.
They will also determine whether or not they feel that the sentence was fair.
What Might the Outcome Be?
There are a few possible outcomes:
- The conviction is upheld: This is where the appellate court agrees with the judgment of the lower court. This does not necessarily mean that everything is over, though. You might still have leave to appeal to a higher court. This would be done using some form of a habeas petition, such as a writ.
- The case is remanded: In this case, the court orders additional proceedings to be undertaken and the trial is reopened. Arguments then proceed again as normal.
- The conviction can be reversed: In this case, the conviction is overturned, and the case will be referred back to the trial court. It will be treated as a new trial.
When it comes to appeals, you do need to have a legitimate case. It should not be seen as an opportunity to overturn a legitimate ruling and sentence. The appeals process can, however, be used to great effect when there is evidence that someone’s right to due process was not upheld, or where there are mitigating factors regarding the sentencing.
What matters with an appeal is to find an experienced attorney that specializes in the appeals process. They must know what filings to make, exactly how to write a persuasive brief and also how to argue the case before the panel.
This is nothing like trial law, and therefore it will pay you to choose a well-respected attorney that is well-versed in case law and procedure.
