How Does the Appeal Process Work in Florida?

How Does the Appeal Process Work in Florida?

How Does the Appeal Process Work in Florida?

Being convicted of a criminal charge and receiving a particularly harsh sentence is one of the most consequential events that can happen to a person. However, this doesn’t have to be the end of your story. If you believe there were specific problems in your trial that contributed to your conviction then your next step should be contacting an appellate attorney to find out what options are available to you. 

Hiring an appellate attorney can help identify any mistakes that were made during your trial and advocate to rectify any possible injustices. Such errors at the trial level must be properly preserved by the trial attorney. Further if the trial attorney fails to properly preserve the error with a timely and accurate objection the error most often is deemed to be waived and cannot be relied upon to obtain relief. That’s why it’s critical to have an experienced attorney represent you at the trial level, an attorney who is Board Certified in Criminal Trial Law like Matthew Lufrano, of Lufrano Legal, P.A.

What is an Appeal?

An appeal is not a new trial.  An appeal is to review any error that the prosecutor, defense attorney, or trial judge may have made during the course of your trial or sentencing, which is documented by the record on appeal. As such, your lawyer will not call witnesses to testify and will not be able to present any new evidence. The appellate court’s job will be to determine if the lower court made any errors in procedure or application of the law during the  trial process.

Who Can File an Appeal?

Though everyone has the absolute right to file an appeal within 30 days of the judgment and sentence, not everyone will have an issue for the appellate court to review.  This is because there must be specific legal problems or issues that occurred during your trial process that led to your conviction, such as the following:

  • Evidence was omitted that should have been reviewed by the jury;
  • Evidence was entered during the trial that should not have been;
  • A member of the jury was not fit to serve;
  • The prosecutor engaged in conduct that prejudiced the jury against you;
  • The jury did not receive proper instructions;
  • The judge’s rulings were legally incorrect;
  • The judge improperly denied a motion to suppress; 
  • The judge improperly denied a motion to dismiss; 
  • The judge considered evidence that was impermissible at sentencing;

What Are the Steps in the Appeal Process?

The first step is to file a notice of appeal: 

While an individual may file his or her own notice of appeal, it is best to hire an appeal lawyer to do this for you. Due to the unique process of an appeal, you want an attorney with experience with the appellate process and who has the skills required to handle an appeal. Your attorney will file your notice of appeal in the court where your original case was heard. You will have 30 days from the date that the order you wish to appeal has been filed in the lower tribunal court to file your appeal.

The second step will be for your lawyer to obtain a record on appeal from the trial court clerk:

This document consists of each paper that the clerk filed in your case as well as the court reporter’s transcripts from the hearings, trial and sentencing. If there are any errors in the trial process your attorney will find them in these documents, typically called the record on appeal.

The third step is to prepare the initial brief and file it: 

After your attorney reviews the record on appeal, he or she will conduct legal research.  If any error is found, the attorney will prepare and file an initial brief. Based upon the documents within the record on appeal, your attorney will explain the facts of your trial case and present the legal arguments that support your appellate issues. 

The fourth step is awaiting the answer brief:

The opposing side will also have a chance to argue against your appeal and will file what is called an answer brief.  They will look at whether the legal arguments raised in the initial brief were properly preserved for appellate review (an issue is preserved if your trial attorney made a proper and specific objection below and a ruling was made by the trial judge).   

The fifth is determining whether to file a reply brief and/or request oral argument: 

In an appeal, unlike trial, the defense gets the last word by filing a reply brief.  This brief points out inaccuracies in the answer brief and finalizes the defense argument in writing.  If beneficial, your attorney may also request an oral argument.  The appellate court has the discretion to grant or deny a request for oral argument.  If the court grants oral argument, the attorneys will appear before a three-judge panel to argue in person the points addressed in the written briefs.   

The last step in the appeal process is awaiting the appellate court’s decision: 

Depending on the reviewing court, this may take 3 to 6 months.  The appellate court may reverse for a new trial, for a new sentencing, for dismissal of a charge, or affirm your conviction.  If your conviction is affirmed, you may have options to further pursue an appeal in another court or file for postconviction relief.  

How Can You Watch the Oral Arguments of the Court?

The majority of the oral arguments are open to public viewing. You can also watch them on the court’s websites. If you need the oral argument schedule, you can also find this on the court’s website. The court’s Marshall will have copies of the court’s daily oral argument schedule, so you will be able to pick one up from him or her.

How Much Does an Appeal Cost in Florida?

There are two appellate filing fees – the first is filed in the lower court and normally is $100.  The second filing fee is made to the reviewing appellate court and is $300. This charge may be waived if you are found indigent and are unable to pay. 

You must pay the filing fee the day that you file the notice of appeal. If there is a voluntary dismissal of this case, your filing fee will not be returned to you. If you cannot afford to pay the fee, you must ask the lower tribunal for a waiver.

How Long Does an Appeal Take in Florida?

The appeal process time varies. Some cases are more complex than others, and this contributes to the length of time that your appeal can take. It will also depend on how quickly your lawyer can submit the necessary documents and whether or not the court is particularly busy. In general, you can expect the appeals process to take anywhere from about 8 to 18 months.  

What Happens if You Win Your Appeal?

The appellate court may agree that an error occurred that resulted in your conviction. In that case, the court may decide to vacate your conviction or sentence. It can also remand your case for a new trial or sentencing hearing. 

Do You Have to Hire an Appeal Attorney to File an Appeal in Florida?

Florida law does not require you to hire an attorney to handle your appeal, so you are free to represent yourself. Although you can represent yourself, that is generally not in your best interest. Appellate law requires a tremendous amount of research and the knowledge of legal reasoning that the average person does not have. Your best chance for a successful appeal is to hire an attorney with experience with the Florida appeals process.

Can You Appeal a Criminal Conviction that Involves a Plea Agreement?

When someone enters a guilty plea, he or she must agree to forfeit several rights, and one of those rights is the ability to file an appeal. With all rules, of course, there are exceptions.  In plea agreements, some exceptions to the waiver of your right to appeal are as follows: 

  • If your plea was not entered into freely, knowingly or voluntarily and you move to withdraw the plea before or after sentencing, but the trial court denies your motion to withdraw the plea;  
  • If you reserved the right to appeal a trial court’s ruling on a dispositive pretrial motion, which the trial court previously denied; or
  • If the plea was an open plea to the judge and there was an error in sentencing.    

Can You Obtain a Copy of the Court’s Decision?

After the appellate court issues an opinion in your case, the decision will be mailed directly to you or your attorney. The opinion will also be published in the Southern Third Reporter, and you can find it in most law libraries.

Is a DUI a felony in Florida?

Is a DUI a felony in Florida?

Is a DUI a Felony in Florida?

The answer to the question above, like so many other legal questions, depends on a variety of factors and circumstances. But ordinarily in Florida, if a person is arrested for the offense of Driving Under the Influence (DUI) that did not result in significant injuries and they don’t have at least two prior DUI convictions, then they would be facing a misdemeanor DUI.   

That said a Misdemeanor DUI, is still an incredibly serious charge that can significantly impact your life. Not only could it affect your ability to drive in the near future, but it could also result in significant fines, a permanent criminal record, probation, and even jail time. Furthermore, the State of Florida can pursue charges of DUI based on one of two theories. First deals with whether an individual’s blood/breath alcohol content was above the legal limit of a 0.08 when the person was driving or in actual physical control of a vehicle. While the second theory focuses on whether a person’s normal faculties, like seeing, walking, talking, or driving, were imparied or diminished in a material way.

It is also worth knowing that here in Florida a person doesn’t have to be driving to be charged or convicted of DUI. That’s due to the fact that Florida not only criminalizes being in “actual physical control of a vehicle” when impaired or when you have an elevated blood/breath alcohol content. Actual physical control is defined as being in or on a vehicle and having the capability to operate it. As such Florida is one place you probably don’t want to try sleeping off a night of drinking in your car.    

So, since a DUI in Florida can come with life-altering repercussions. It is important for you to understand just what the law requires and how the judge can sentence you if you are charged with a DUI.

What is a Misdemeanor in Florida?

Here in Florida a misdemeanor is any offense for which the maximum sentence can not exceed 364 days in the county jail. As such misdemeanors are less serious offenses than felonies, but still remain quite serious. After all some misdemeanors like domestic battery and DUI can have impacts well beyond any that a Judge were to impose as some can impact your ability to find housing or maintain licensure for certain occupations.   

So if you find yourself facing a misdemeanor, whether for DUI, Domestic Battery, or another offense, it’s vital to remember that such a charge is a big deal and could have devastating implications on your life. That’s why it’s so important that you reach out to an experienced defense attorney should you have questions about or be facing such an offense. 

What Happens if Convicted of a Misdemeanor DUI in Florida?

The punishment for a misdemeanor DUI will depend on a variety of factors including the specific facts of your case, your prior record, the Judge you are before, how high your blood alcohol level was, whether the DUI resulted in damage, and if a minor was present for the offense. That said the minimum penalties that a person inn Florida could receive for a first-time misdemeanor DUI include: 

  • A formal conviction for DUI
  • Six months of Probation
  • A six-month suspension of their drivers license
  • 50-hours of community service
  • A fine of $500.00
  • Attendance at DUI School
  • Attendance at a Victim Impact Panel
  • 10-day vehicle impoundment
  • And being sentenced to the jail time one has already served

It’s also important to remember that the penalties listed above are simply the minimums allowable under the law. Should a person have a case that involved a particularly high breath alcohol sample or involved damage the penalties can become far more severe. Additionally, should a defendant fail to comply with their sentence for DUI, they can be brought back before the Judge and face additional jail time and sanctions. 

It is also critical to understand that subsequent DUI offenses will always be more serious than those that preceded them and as such they will open a person up to far greater penalties. For instance, the minimum potential sentence for a second DUI within five years of a person’s first include: 

  • A formal conviction for DUI
  • Twelve months of Probation
  • A five-year suspension of their drivers license
  • Ignition Interlock Device
  • A fine of $1000.00
  • Attendance at DUI School
  • Attendance at a Victim Impact Panel
  • 30-day vehicle impoundment
  • No less than 10 days incarceration in the county jail

Misdemeanor charges may also require you to have an Ignition Interlock Device (IID) installed. This tiny device is actually a breathalyzer that determines whether or not you can safely drive your vehicle. Not only can these devices be expensive, but they are also frequently inconvenient and embarrassing. As such the best thing you or a loved one can do when facing a serious offense like DUI is to consult with an experienced and well-trained defense attorney

How Long Does a DUI Stay on Your Record in Florida?

In Florida, a conviction for DUI charge will stay on your record forever. Thus, a conviction on a DUI will mean that anyone who runs a background check on you, be it a landlord, banker, or a potential employer will know about your past indiscretion. Additionally, if you have a sealable or expungable offense on your record, but haven’t yet had it removed, a conviction for DUI will prevent you from doing so as well. This is why it is so important to get appropriate legal counsel if you have been charged with a DUI. After all there is a huge difference between being arrested for an offense and being convicted of it. 

What Would Make a DUI in Florida a Felony?

Now as mentioned above, not all DUI offenses are the same and some DUI offenses in Florida are charged as felonies. A felony is generally described as any offense for which the maximum sentence can exceed 365 days in the county jail. As such, felonies are far more serious than misdemeanors, due to the significantly harsher penalties they carry and the tremendous negative impacts they can have on a person’s life. However, in order for a DUI in Florida to be charged as a felony generally the offense must have either: resulted in the death of another, DUI Manslaughter, OR resulted in serious bodily injury of another, DUI with serious bodily injury, OR have been a third of subsequent DUI. Any of which are extremely serious. So, if you or a loved one finds yourself facing a felony DUI don’t wait, contact an experienced criminal defense lawyer who can assist you. 

At What Point During a DUI Can I Lose My License? 

Although you are innocent until presumed guilty, it’s important to know that the ability to drive an automobile in Florida is considered to be a privilege, not a right. As such it is important to know that the choices you make if arrested for DUI will directly impact the status of your driver’s license.

More specifically if you are arrested for a first time DUI and you provide a breath sample above the legal limit the DMV will suspend your privilege to drive for six month. If however you are arrested for a first time DUI and you refuse to provide a breath sample the DMV will suspend your privilege to drive for 12 months. What’s more if after having your license suspended for refusing to provide a breath sample you ever refuse to provide a breath sample again that constitutes its own crime known as Criminal Refusal. 

But don’t despair if your license has been taken after a DUI arrest. An experienced criminal defense attorney may be able to assist you in challenging the suspension of your license. That said the deadline for doing so is 10 days from the date your license was suspended. Additionally, if your license was lawfully suspended you may qualify for a hardship license, so if you have just lost your license following a DUI arrest, don’t delay, reach out to the firm of Lufrano Legal, P.A. today.

What Should You Do After Being Charged with a DUI or Arrested?

If you have been charged with a DUI, it is vital that you immediately contact a DUI attorney. Such an attorney should be well-versed in all of the minutiae of the law surrounding DUI convictions and can help you make the right choices and say the right things in court. It is especially important to hire an attorney if you believe that you have been wrongfully arrested or if there were aggravating factors involved. Your lawyer will be able to help you work quickly in getting a court date and addressing any license suspension that may have occurred. So, if you or a loved one was recently arrested or charged with a DUI contact the firm of Lufrano Legal, P.A for a free consultation.

Furthermore, while the best solution to avoid prosecution is never to drink and drive, you or someone you care about may someday be charged with a DUI. But by knowing the laws and working with an attorney, you will find yourself prepared for this stressful time and can get through it without undue stress.