The Law Offices of John Ferrara

Are There Any Convictions That Cannot Be Appealed?


If the defendant “correctly” waives his right to appeal, then the appellate court can only review the conviction in limited circumstances. If he waives the right to appeal, then in all but the most limited circumstances that ends the process. The appellate court will not rule on the arguments of a person who waived his right to appeal correctly, with limited exceptions.

The argument that the court imposed an illegal sentence survives a properly done waiver of appeal. Additionally, despite a waiver of appeal, the appellate courts will hear a claim that one’s constitutional speedy trial rights were violated.

But beyond the limited circumstances where the appellate courts will hear an appeal despite a properly done waiver of appeal, the waiver normally ends the review process.

We see many cases where the defense argues one only waived appeal because of ineffective assistance of counsel by the trial lawyer. This normally involves claims that are not on the record. These claims therefore become the subject of a motion to set aside the verdict. They do not become the subject of the appeal, but they are similar. We are still attacking the conviction, only the attach is at the trial court level, not the appellate level.

What Steps Must Someone Take To Appeal A Trial Court Conviction?

The first step that someone must take to appeal a trial court conviction, and the one that is the most important, is that the appellant must file a notice of the appeal within 30 days of the conviction. It’s a very simple process. It is a one page document that says I intend to appeal.

Once one files that notice of appeal (and serves a copy on the District Attorney), the appellant begins to build a record. This requires him or her to assemble all the documents presented to the trial court, and to order all the transcripts of all the proceedings that occurred before the trial court.

Once the appellant assembles the record, he or she must send the record to the adversary, usually the District Attorney, for review. If the adversary stipulates to the record and says that it is accurate and complete, then the record should be filed with the appellate court. If there is a disagreement over the record, the trial court settles that disagreement. In other words, if something in the transcript is inaccurate or arguably inaccurate, the trial court is the arbiter of what actually was said on that day.

Meanwhile, and this is the hard part, the appellant or his attorney drafts the brief. This is the written argument, based on the record and the law, that the appellant must make to the appellate court. This is where the appellant argues, based upon what took place at the trial court and based upon the law, the lower court made a mistake, and that mistake should lead to a remedy. After the appellant writes the brief and prepares the record, the respondent submits his or her own brief seeking to uphold the lower court’s ruling.

The appellant can, if he or she elects, file a reply brief to address issues raised in the respondent’s brief.

In most cases, the appellate court will then allow oral argument after the case is fully submitted and all the briefs and records have been filed. At the oral argument, the lawyers to the appeal will argue their case orally before the courts. Most importantly, the judges on the panel will have the opportunity to ask the lawyer questions, to probe what bothers them about the arguments made to one side or the other, and to test the responses. This is often a great opportunity to rectify a hole in one’s argument as perceived by the judge. If one can provide a satisfactory answer, one has a better chance to persuade the judge or judges to his or her side.

After that is done, we wait for the court to render a decision. That would conclude the appeal, with the exception of perhaps review in an even higher court.

Who Are The Main Players In An Appeal Case?

The first major players in an appeal is the trial judge, who may have to settle the record if the parties cannot agree on what is in the record. The second major player can be, although the appellant can proceed pro se, is the appellant’s lawyer who performs the various tasks that we have discussed above. Either the District Attorney or Assistant District Attorney who represents the prosecution would be another player in this process.

The appellate court is made up of one or more judges, depending on which courthouse we are talking about. There is usually more than one—sometimes five, sometimes seven, and in the Supreme Court, nine who read the briefs, conduct their own research, and then render a decision.

Behind the scenes of the appeals process are the court’s clerical staff, who are responsible for ensuring that the record and briefs adhere to strict rules, pertaining to everything from the typeface to making sure that the record contains all the required documents and who do the scheduling. Also, behind the scenes are court attorneys, who assist the judges with the research, the writing, and may suggest questions at oral argument. Each judge usually has one or two court attorneys, depending on the court and how they use the court attorneys.

For more information on Convictions That Cannot Be Appealed, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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