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 a criminal defense 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.