A Guide to Appealing a Criminal Conviction in Florida

In Florida criminal appeals are often misunderstood. A criminal appeal is essentially the legal process by which a defendant seeks to challenge the ruling of the trial court. Now in the criminal context the vast majority of appeals occur after a defendant has been convicted of a crime, however there are some instances where a Defendant can file an appeal before the trial has actually commenced. Additionally, while every defendant may have the right to file an appeal, not every defendant will be entitled to appellate relief or even have an issue preserved to address on appeal. But hopefully this post will help to clarify what a criminal appeal is and how it works.

Put simply an appeal is not a do-over or an automatic chance at a redo of one’s trial. Said differently, you can’t simply appeal your case because you don’t like the outcome or think the jury made the wrong decision.When you file an appeal in a Florida criminal case, you must assert that the court made specific legal errors or that your rights were violated. Moreover, in order to be able to raise such issues a defendant’s attorney had to preserve these errors by making timely objections. Then, the appellate court reviews the actions of the trial court to determine whether there were errors. Even then, the higher court won’t necessarily set aside the verdict or order a new trial. That only happens if the Court of Appeal determines that the error or errors were harmful–that they are likely to have impacted the outcome of the case.

About Florida Criminal Appeals

Who Can Appeal a Florida Criminal Conviction?

A defendant or who has been convicted of a crime by a jury or by a judge can generally file an appeal. Likewise, the attorney representing a defendant or who has been convicted of a crime by a judge or by a jury can file an appeal on the defendant’s behalf. Further, since appeals are typically quite technical and require an in-depth understanding of the law, it is usually best to seek out an experienced appellate attorney.

Now as mentioned directly above, usually an appeal is filed by a defendant who has been convicted after trial. However there are some circumstances where a defendant can file an appeal without a trial. For instance, if a defendant’s case involved the filing of a stand your ground motion and that motion was ultimately denied after a hearing, it is possible to take an appeal of this issue prior to conducting a trial. Likewise, while in most instances a person who enters a plea of guilty or no contest gives up their rights to appeal, there may still be limited grounds on which an appeal can be filed addressing the legality of the sentence or whether the plea was entered freely and voluntarily.

But again in the vast majority of criminal appeals, the challenging of a legal ruling by a trial court can only occur after a trial is conducted. For instance, if your defense attorney files a motion to suppress evidence and that motion is denied, you won’t be able to appeal that decision directly. Instead, you’ll have to wait until the trial is over. Then, if you have been convicted, the judge’s decision to allow that evidence to be introduced may be grounds for an appeal. The reason being that the law in Florida only allows a criminal defendant to appeal from a final order.

How Does the Florida Criminal Conviction Appeals Process Work?

Appealing a trial court ruling is a very complicated process, in fact one could argue that it is even more technical than a criminal trial. The appellant must follow very specific procedures, supply legal authority, and carefully-constructed legal arguments in support of their claims. All of these are incorporated into a legal document known as an appellate brief. This brief not only includes the arguments of the party appealing the underlying decision, but it also provides the higher court with the legal authority the argument relies upon, and directions to support for this position within the record. Now the “record” also known as the “record on appeal” is another critical component to an appeal. The record is the transcription of all pertinent court proceedings including motion hearings and trial proceedings that led to the legal ruling which is being challenged through the appeal. Now the reason the record is so significant is that in a criminal appeal a defendant cannot raise new arguments. Instead there has to be support for whatever position a defendant is raising in the appeal within the record.

The Florida Bar Association does offer a handbook on filing an appeal pro se (without an appeal lawyer), but it is 255 pages long and starts with a lengthy warning about the risks of trying to file and argue an appeal on your own. The best way to appeal a Florida criminal conviction is with the assistance of an experienced criminal appeal lawyer.

Notice of Appeal

Many people in Florida think that after a trial they have months or even years to file a criminal appeal. Unfortunately these beliefs are very misguided. In fact in most cases a defendant only has a matter of days to file a direct appeal, or risk losing the ability to challenge the order of the trial court. As such, if you or a loved one has been convicted of a crime you’ll want to consult a criminal appeal attorney as soon as possible.

Now earlier it was mentioned that a criminal defendant typically only has a matter of days to file a criminal appeal. In fact generally in Florida a Defendant only has 30 days from rendition of the order being appealed to do so. Further the process of filing an appeal begins with the filing of a formal document known as a Notice of Appeal. The notice of appeal is not a detailed statement of your claims on appeal, but it must follow a specific format. The notice of appeal must not only be filed in the correct court, but it also be served on the prosecuting attorney and the Attorney General for the State of Florida. But the Notice of Appeal isn’t the only document that a defendant has to file in order to appeal a case. As such it is once again greatly recommended that if you or a loved one are in need of a criminal appeal, you’ll seek out the services of a trained professional.

Preparing the Record

The Clerk prepares the record for appeal, but that doesn’t mean that the process happens automatically in a way that will support your appeal. For example, certain parts of the record are always included, but if you need additional pieces not included on the mandatory list, you must provide instructions. This is a good example of an area where it’s easy to make mistakes if you’re not represented by an experienced appeal attorney. The appellate court can only consider information that’s in the record. So, if you leave out something important, it could mean losing an appeal that could have been won.

Another thing many criminal defendants don’t realize is that although there is typically a court reporter in the courtroom documenting the proceedings, there is no actual transcript of the trial unless and until someone requests and pays for the transcript. This can be a significant expense.

Submitting Briefs

The appellant–in a criminal case, the person who has been convicted and filed the Notice of Appeal–must file an initial brief. This brief explains specifically why you believe the trial court was wrong as to each of your issues on appeal. This brief must be formatted in a particular way, which includes a table of contents, a table of authorities, a summary of your argument and more detailed arguments on each issue. There are even rules about which fonts you can use.

After you file your initial brief, the prosecution will have an opportunity to file an answer brief, rebutting your arguments and setting forth their own. Then, you’ll have a chance to reply.

Oral Arguments

After all of the briefs have been submitted and reviewed by the appellate judge, oral arguments may be scheduled. Whether or not oral arguments will be held is ultimately decided by the higher court who is ruling on the appeal. However, it is possible for either party to an appeal to request that oral arguments be held. That said, these are not the type of arguments you see in a criminal trial, where the prosecution and defense may each speak for an hour or more, highlighting evidence and weaving a story with the goal of  persuading the jury. Oral arguments during the appellate process are time-limited. In fact each side may have as little as several minutes to try to express their points. Moreover, an oral argument generally isn’t an uninterrupted speech, as the judges who listen to such arguments may interrupt the attorney arguing to ask them questions. Thus to do well in an oral argument takes not only an incredible wealth of legal knowledge, but the ability to think on one’s feet.

Alternatives to Criminal Appeals

Though this guide is focused on appealing a criminal conviction, it’s worth noting that if an appeal fails there may still be other avenues for relief. In fact Florida law also offers several options for post-conviction relief (PCR). These include motions to vacate a conviction or to correct sentencing. The timeline for filing motions for post-conviction relief are typically significantly longer than the window to appeal. So, if you have missed your opportunity to appeal, you may still have the option of pursuing post-conviction relief. Having said that, it is also worth noting that typically a criminal defendant’s best chance for relief comes from a direct appeal. So while post-conviction relief methods may still be available at a future date, it is best not to let a defendant’s chance at a direct appeal slip away.

Criminal Defense Attorney Matthew Lufrano

Attorney Matthew Lufrano is certified by the Florida Bar as an Expert in Criminal Trial Law. He has represented people charged with crimes ranging from minor misdemeanors to first-degree murder. To learn more or schedule a free consultation, call 904-513-3905.