Appealing Convictions: Appellate Advocacy and Legal Counsel

January 2, 2018 — by John Conger
Tags: Appellate Law

The outside of a courthouseWhen a defendant feels that the criminal justice system functioned improperly and they were not given a fair hearing, that is when the defendant can file an appeal. An appeal is not a new trial per se but rather a request made to a higher court to examine the legal proceedings in the lower court case. The higher court will determine if mistakes were made in the lower court’s case, such as the admission of hearsay evidence or procedural issues on the part o the judge or prosecutors.

The team at Shore, McKinley & Conger, LLP has helped may clients in the Stockton, CA area with many facets of appellate law. Let’s briefly consider the steps involved in the appeals process so you know what to expect.

Filing a Notice of Appeal

Note that during the appeal process, the defendant filing the appeal is now known as the appellant. The first step in the appeals process is filing a notice of appeal. This notice of appeal must be filed by the appellant within 60 days of the judgement in the case being appealed.

Preparation of Court Transcripts

Once a notice of appeal has been filed, the higher court must then prepare two transcripts of the case. One of these transcripts is from the court reporter, which includes everything said during the legal proceeding. The other transcript is from the court clerk, and consists of all evidence, documents, and materials placed into the court’s file.

Opening Brief by the Appellant

An appellant’s opening brief explains to the court why an appeal is being sought. These opening briefs often include a summary of the case and statutes involved. The appellant will use this brief to make a request for a new trial, a new sentence, or the reversal of a conviction.

Brief by the Respondent

Following an appellant’s opening brief, the respondent (usually the prosecution) is allowed to issue a response. This brief may explain any perceived legal errors or procedural problems cited in the appellant’s opening brief.

Appellant’s Reply Brief

Following the respondent’s brief, the appellant is offered the ability to respond. This reply brief is typically due within 20 days of the respondent’s brief, and must limit itself to the issues brought up in the brief by the respondent.

Oral Argument

Appellants will eventually be given an opportunity to offer an oral argument on their behalf before the court. This helps restate the appellant’s case for seeking appellate relief.

The Opinion

Noting all of the briefs and arguments, the three judges reviewing the case will then discuss issues and vote on the matter. A written opinion on the case is issued, which can take anywhere from a few days to three months.

Petition for Rehearing

Within 15 days of the opinion, it is possible to petition for a rehearing of the appeal, asking the court to reconsider its decision. Given how narrow the grounds are for a rehearing, few of these petitions are filed and even less are granted.

Petition for Review by the California Supreme Court

Within 40 days of the opinion, it’s possible to file a petition for review by the California Supreme Court. This is no guarantee that the California Supreme Court will hear the case, so these petitions are rarely filed or granted.

Contact Shore, McKinley & Conger, LLP

For more information about your legal rights and options, be sure to contact an experienced criminal case attorney today. The lawyers of Shore, McKinley & Conger, LLP are here on your side, offering expert counsel and advice to all of their clients.