Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
Persons convicted in State court proceedings have several options available to them after they are convicted. These options include (1) filing a direct appeal in a court of appeal; (2) filing a postconviction motion in the trial court, such as a motion to withdraw a plea, or a motion to vacate, set aside, or correct the sentence; and, (3) filing a petition for writ of habeas corpus in Federal court. Persons convicted in Federal court also have the same types of options.
Habeas corpus proceedings are quasi-civil in nature. Although the conviction being attacked is criminal, and the caselaw surrounding habeas issues can overlap into the criminal arena, the proceedings occur in a civil context, and many of the procedural rules are civil in nature. As a result, although the Government or the State may have had to carry the burden in the criminal phase of the proceedings, the burden often shifts to the petitioner during habeas proceedings.
For those wishing to consider filing a petition for writ of habeas corpus, the United States Code contains numerous statutes and rules that should be consulted beforehand. These sections can be found at 28 U.S.C. secs. 2241-2266. Generally, while persons attacking State court convictions file petitions under section 2254, persons attacking Federal court convictions file motions under section 2255. Some of the topics addressed by the statutory sections include (1) the Court’s power to grant the writ and requirements of petitions (secs. 2241 and 2242); (2) procedural matters, such as compiling the record, evidence, and hearings (secs. 2243 and 2245-2250); (3) indigent petitioners (sec. 2250); (4) the one year statute of limitations (sec. 2244(d)(1)); (5) successive petitions (sec. 2244); (6) stays of state court proceedings (sec. 2251); (7) the role of the Attorney General in proceedings attacking state court convictions (sec. 2252); and, (8) appeals of decisions on petitions and certificates of appealability (sec. 2253). In addition, counsel should note that there are specific Rules governing habeas proceedings under both sections 2254 and 2255. Rules 1-12 Governing 2254 Cases and Rules 1-12 Governing 2255 Proceedings can be found in the United States Code immediately following the statutory sections. A form petition for filing under section 2254 and a form motion for filing under section 2255 can also be found immediately after Rule 12 of the 2254 and 2255 Rules.
Persons convicted of capital crimes or their attorneys should consult the Special Habeas Corpus Procedures in Capital Cases, found at 28 U.S.C. secs. 2261-2266.
Whether a party is in State or Federal court, whenever a court renders an adverse decision, a party should consider several factors in deciding whether to appeal the order, including: (1) whether there is a right to appeal the order; (2) when the appeal may be filed; (3) what are the time limits governing the appeal; (4) in which court will the appeal lie; (5) what is the applicable standard of review; and, (6) what are the costs associated with the appeal.
With regard to the right to appeal, parties should be aware that some orders may not be immediately appealable. Rather, the rules may provide that the appeal may only be heard at the end of the case.
With regard to the time of the appeal and applicable time limits, the parties may wish to consult the appellate rules for guidance on the time in which notices of appeal, appellate briefs, and appeals-related motions should be filed. Failure to follow the applicable rules may result in a party losing the appeal. The Rules for the United States Court of Appeals for the Eleventh Circuit may be found here. The Florida Rules of Appellate Procedure may be found here.
In determining where to file the appeal, appeals in both the State and Federal system generally lie with the next higher court. For example, State court cases in the County Court may be appealed to the Circuit Court, and Circuit Court cases may be appealed to the District Court of Appeal. Opinions rendered by any of the Florida District Courts of Appeal may be appealed to the Florida Supreme Court. In the Federal system, orders issued by a United States Magistrate Judge may be appealed to the United States District Court, District Court orders may be appealed to the Eleventh Circuit, and opinions issued by the Eleventh Circuit may be appealed to the United States Supreme Court.
Standards of review on appeal include de novo and abuse of discretion. A party should be aware that the likelihood of success on appeal may be determined in large part by the applicable standard of review.
Finally, a party should be aware that costs of an appeal may be substantial. Prior to deciding whether to appeal, a party may wish to consider the costs associated with filing the notice of appeal, designating the record and transcripts, and filing briefs and motions. Having counsel attend oral argument may also add to the cost of appeal.