What You Need to Know About Appeals

A criminal appeal is a formal request to rehear a case that has already been decided — a request that a new court reconsider the decision of the first court. When one or both sides of a case that has already been decided think there was a mistake made at trial, they can file an appeal. If you were convicted at your first trial, but feel that justice was not done or somebody made a mistake that could have changed the outcome, a criminal appeal is often your best option. But you must move quickly — California law gives criminal defendants just 60 days from the date of their sentencing to file a notice of appeal.

It is essential that you consult with an experienced appellate law firm before deciding who should represent you or your loved on in your appeal. It is almost always better to have a different lawyer (other than the lawyer who did your trial) do the appeal. This is because the trial lawyer may not realize some of the errors that occurred during the trial.

There are many issues that must be examined when a law firm determines what legal grounds there may be for winning your appeal. Some of those legal grounds deal with “legal errors” that may have occurred during the trial. This could be improper rulings the trial judge made to include or exclude key evidence. It could be the trial court giving improper jury instructions to the jury. Another common ground in many appeals is either juror misconduct or prosecutorial misconduct. But grounds for an appeal can also center on the quality of your representation or other circumstances that may have resulted in you not having received a fair trial. Upon receiving your case, the team of Orange County criminal appeals attorneys at Wallin & Klarich will thoroughly review the transcript of your trial, court filings and other documents to look for all potential grounds for appeal. Our California appeals lawyers will then present you with a comprehensive list of your options and help you decide how to proceed.

Once that decision is made, Wallin & Klarich will prepare an appellate brief to present to the appeals court. This brief will lay out and support our legal arguments about why your conviction should be overturned. Often, the court will ask our attorneys to come to the court and argue the case in person. The final decision by the court of appeal often comes between 12 and 18 months after the defendant was sentenced. If the court reverses your conviction you will be entitled to a new trial. If the court affirms your conviction there are other options that may be available which you can discuss with your Wallin and Klarich appellate attorneys.

An appeal is entirely different than a jury trial. There is no “testimony taken”. The court of appeals decides the case entirely upon the written briefs filed by your attorney and the Attorney General’s office who always represents the prosecution and asks that the conviction be upheld. It is vital that you retain the services of a law firm that has years of criminal appellate experience. Wallin and Klarich have been handling criminal appeals for almost 30 years. Wallin & Klarich has the experience and understanding of the law to maximize the chances that your appeal will be a success.

More California Appeals Information

• Appeals Overview
• Appeal Process
• Appeals Step by Step Process
• Appeals FAQ
• Client Testimonials: Appeals

Appeals – The Appeals Process Steps – California Penal Code 1237

Notice of Appeal California Penal Code Section 1237, California Rules of Court, Rule 8.304

Once trial has been completed and a conviction passed down, the first step in the appeals process is to file a notice of appeal in order to have a higher court review the trial courts proceedings. A notice of appeal is filed by your attorney with the clerk of the Superior Court that expresses an intent to challenge the decision of the trial court.

The law provides that you must file a notice of appeal within 60 days of sentencing for a felony conviction and within 30 days of sentencing for a misdemeanor conviction. See California Rules of Court, Rule 8.308 & 8.853.

Record on Appeal

After a notice of appeal has been filed, the Superior Court prepares a record on appeal, which consists of all transcripts and documents produced for the purpose of the trial. In preparing the record on appeal, the court reporter who had been present at the trial will prepare a written transcript of everything that was said during court proceedings, and the court clerk will be responsible for assembling all the other documents which were prepared and filed to the court by the parties. The result will be a full and complete record of the factual and procedural events of the trial. This transcript is referred to as the clerk’s transcript.

Appellants Opening Brief

After the transcripts are prepared and sent to the Court of Appeal, a criminal appeals attorney representing the appellant will meticulously review the records and transcripts to find any errors that may have been made by the court during the trial process. The attorney will then submit a written brief to the Court of Appeals citing the errors that he or she claims were made during the trial and will request that the court of appeals “reverse the conviction” of the accused appellant. The appellant’s opening brief is an extensive document that includes summaries of the facts and detailed legal arguments citing statutory and case law that supports the appellants’ legal position.

Respondents Brief

The California Attorney General, an agency distinct from the District Attorneys Office that originally prosecuted the case in trial, is responsible for representing “The People of the State of California” in an effort to prevent the conviction and sentence from being reversed by the court of appeals. In opposing the appeal, a Deputy Attorney General reviews both the record on appeal and the appellant’s opening brief and asks the court not to change the trial court’s verdict.

Appellants Reply Brief

Due to the fact that the burden rests on the appellant to persuade the appellate court to reverse the trial courts decision, the law provides that the appellant may file a “reply brief” in which the appellant can respond to the contentions raised by the Attorney General. A reply brief is due 20 days after the respondent’s brief is filed. An appellant’s reply brief is useful in providing the appellant an opportunity to further elaborate on his or her contentions as to why the conviction should be reversed by the appellate court.

Oral Arguments

In the final phase of an appeal, the reviewing appellate court will hear oral arguments from both sides regarding their positions. Oral arguments are heard before the justices of the court of appeals who will decide the case. The justices often will ask the lawyers questions and will also hear from the lawyers why they believe that their legal position is the stronger one in this particular case. The decision to either affirm or overturn the lower courts decision will take the form of a written opinion by the court of appeals.

Written Decision of the Court of Appeals

The justices of the court of appeals after listening to oral argument will then confer. The justices will then render their opinion in the form of a written opinion. In some cases, the opinion will be unanimous. However, in other cases, there will be a “majority opinion” as well as a “dissenting opinion”. Like in most matters, the decision that will prevail will be the one that is supported by a majority of the justices. The appeals process takes a long time and is extremely complex. Because of the limited timeframe in which you are allowed to file for an appeal, it is important that you contact an experienced appeals attorney as soon as your trial is completed. The appeals attorneys at Wallin & Klarich have over 30 years of experience handling the appeals process. We have the knowledge and expertise to make the best possible legal and persuasive arguments to help you overcome your conviction. The attorneys at Wallin & Klarich will closely scrutinize your case, combing over the court record to catch any possible errors that may have prejudiced your case. If you believe you have been wrongly convicted, call the attorneys at Wallin & Klarich today at 1-888-749-0034 or visit us online at

www.wklaw.com. We will be there when you call.

More California Appeals Information

• Appeals Overview
• Appeal Process
• Appeals Step by Step Process
• Appeals FAQ
• Client Testimonials: Appeals

Appeals – The Appeals Process – California Penal Code 1237

The ability to appeal a criminal conviction is governed by California Penal Code Section 1237. Once the judge or jury finds the accused guilty of criminal offense and sentence is imposed, you must file a notice of appeal within a specific period of time. Once the notice of appeal is filed, the court clerk will prepare the “record on appeal,” which will include all of the court documents, entitled the “clerks transcript” and the court reporter will prepare a transcript of the entire trial process, entitled the “reporters transcript”

When the record is complete, the appellants (the person who was found guilty of the crime is called the appellant attorney will file an “appellants opening brief.” The appellants opening brief will outline, discuss, and analyze the trial court record and indicate any mistakes that may have been made by the trial court or by the prosecutor or by the defense attorney during the trial process. All issues or legal arguments subject to appeal are addressed in this brief.

Once the appellants brief has been submitted, the opposing side (represented by the Attorney Generals Office) will submit a “respondents brief” that addresses and challenges all of the legal arguments presented in the appellants opening brief. The Appellant is then entitled to file a “reply brief” which allows the appellant to respond to legal arguments raised by the Attorney General in his respondents brief.
After all of the briefs have been filed, the appellate court will set a date for “oral argument.” This is when the lawyers for the appellant and respondent appear before the court of appeals to answer questions posed by the appellate court and make legal arguments to explain why their side should prevail in the appellate court. These oral arguments are based on the submitted briefs.

After oral arguments, the appellate court will make a ruling based on the legal arguments presented. The ruling will take the form of a written opinion and will either affirm or overturn the trial courts ruling. There is often a substantial delay between the time of oral argument and when a final judgment is rendered by the court of appeals.

As you can see the appellate process has many steps and takes many months if not years to complete.

More California Appeals Information

• Appeals Overview
• Appeal Process
• Appeals Step by Step Process
• Appeals FAQ
• Client Testimonials: Appeals

Appeals Process FAQ – California Penal Code 1237

Appeals FAQ

1. Will I remain in custody during my appeal? In all misdemeanor cases, if you file a notice of appeal, you are entitled to remain free from custody upon the posting of reasonable bail. See California Penal Code Section 1272. What this means is that while the lengthy appellate process proceeds you will be free to return to work and your family and will hope that the conviction is reversed.In felony cases, whether or not you remain out of custody during the appeals process is left to the discretion of the trial court judge. If the trial judge believes that you are not a flight risk, meaning that you will not try to avoid prosecution by fleeing from the jurisdiction, and that you have a good chance of prevailing in your appeal then the judge may allow you to post reasonable bail to remain out of custody while your appeal is pending. See California Penal Code Section 1272.1. However, in reality in a very high percentage of felony cases the trial judge will remand the accused into custody either on the date the jury returns a guilty verdict or at sentencing. It is critical to have your lawyer ready to argue strongly to permit you or your loved to remain out of custody pending the lengthy appellate process.
2. If the reviewing appellate court affirms my conviction, what options do I have?If your conviction is “affirmed on appeal” this means that the court of appeals does not believe you should be entitled to a new trial. If this happens, your attorney may petition for a rehearing within 15 days after the courts opinion is filed. This is essentially a request for the appellate court to reconsider its judgment.If your appeal to the Court of Appeal fails, you have the option to file a petition for review in the California Supreme Court, the highest court in the state, within 10 days after the decision of the Court of Appeal becomes final. If the California Supreme Court turns down your request you may still be able to pursue additional appellate remedies in the federal courts.
3. Is an appeal like getting a second trial?No. When your case goes to appeal, there is no jury, no witnesses, and no live testimony. What the appellate courts look at when reviewing your case is the record that was produced at trial. The appeal process is grounded solely on written briefs and oral arguments that contend that the trial court had erred on a particular matter that resulted in your wrongful conviction.
4. What happens in most cases if the appeal is successful and the court of appeals reverses the accuseds conviction?

When a higher court decides to reverse the trial court, the case typically becomes “remanded,” or sent back to the Superior Court for further proceedings. In most cases, what this means is that the defendant will receive a new trial or the prosecution may decide to dismiss the charges if the witnesses can no longer be found. In many cases, what may occur is that to avoid a new trial the prosecutor may make a “plea bargain” that is much more favorable to the accused than the sentence that had been previously imposed by the court.

More California Appeals Information

• Appeals Overview
• Appeal Process
• Appeals Step by Step Process
• Appeals FAQ
• Client Testimonials: Appeals

Testimonials

Appeals

APPEALS:                              On behalf of myself and family, I would like to extend my gratitude, appreciation and thanks to Wallin & Klarich and its staff, for the hard work and diligence in obtaining a positive outcome to my appeal.

-N.G.

“Prior to retaining the services of Wallin & Klarich, I was convicted of statutory rape, which subjected me to automatic deportation. I retained the services of Wallin & Klarich to set aside conviction in order to avoid deportation. The attorneys of Wallin & Klarich moved aggressively to present my case to the District Attorney and Judge. Wallin & Klarich successfully drafted and argued a Writ of Corum Nobis and Writ of Habeas Corpus, which resulted in dismissal of all charges against me. Due to Wallin & Klarich’s suburb legal knowledge the District Attorney will not re-file any charges against me. Thus, there is no conviction on my record and INS can not initiate deportation proceedings against me. I am grateful to Wallin & Klarich for their advice and guidance. I would recommend them highly to anyone facing a similar situation or any other criminal charge.”

-M.

More California Appeals Information

• Appeals Overview
• Appeal Process
• Appeals Step by Step Process
• Appeals FAQ
• Client Testimonials: Appeals