Criminal Appeals & Writs
After a conviction of a crime, a defendant has a right to an appeal. An appeal is a way to attack the conviction, either after a jury or court trial, or even after a plea of guilty or “no contest”/nolo contendre. If your legal rights or constitutional rights were violated, you may be entitled to a new trial or reversal of your conviction. Some common grounds for appeal include ineffective assistance of counsel (for example, your attorney did not fully investigate your case, they failed to put on a proper defense or adequately defend you or question witnesses), new evidence has been discovered that would change the outcome of the case, you were improperly advised as to the maximum penalties or other consequences, etc.
A misdemeanor conviction is appealed first by filing the Notice of Appeal. This must be done 30 calendar days after the judgment or order of the court (i.e. the probation and sentencing date). Some reasons for appealing a misdemeanor also include that your substantial rights were affected, such as enforcement of probation conditions, revocations of probation, modifications, etc.
A defendant is also entitled to bail or release from custody pending the appeal.
A felony conviction is appealed by first filing the Notice of Appeal. This must be done within 60 calendars after judgment or order of the court (i.e. the sentencing date). In a felony case where a plea of guilty or nolo contendre/no contest was taken, the attorney or defendant must obtain a certificate of probable cause from the trial court. Bail may be available pending appeal, depending on the circumstances.
When appealing a case, we are asking the Court of Appeal to either reverse the conviction, reopen the case, or examine some other error by the trial court (for example, you were sentenced improperly).
Recent case law has created further opportunities for appeals dramatically. In Cunningham v. California (January 22, 2007), the United States Supreme Court ruled that the sentencing scheme in California, which allowed a judge to sentence a defendant to the “high term”, was unconstitutional, in that a jury must be allowed to make that determination rather than a judge. This opens the door for many opportunities for appeal because the defendant may have been unconstitutionally sentenced, coerced into a plea, or improperly advised on their case. A defendant has the right to a trial by jury in accordance with the 6th Amendment to the U.S. Constitution. This, the U.S. Supreme Court said, was one reason why the California sentencing scheme was unconstitutional – it took a defendant’s right to a jury trial away from them and gave it to the judge. As the legal landscape continues to change, so too does the opportunity for upholding a defendant’s rights.
We are highly competent at handling these complex matters. Reviewing a trial or case for appeal can be a very intense undertaking. We will contact the defendant/inmate directly and work closely with him/her to examine every possible outcome and choose the most favorable path. We will obtain the court file, the probation reports and records, the police reports, the trial court attorney’s information, and thoroughly examine all avenues to properly evaluate your case.
A writ is an interim appeal of a court ruling, usually on a quicker path than an appeal. Writs are most often used while cases still pending or open, as a way to challenge the trial court’s actions or lack thereof. Some common writs include:
Writ of Mandate – this is used to ask a lower court to perform some action in a case
Writ of Prohibition – this is used to ask a lower court to refrain from taking an action that is believed to be beyond its authority
Writ of Error Coram Nobis – this is a post judgment remedy, usually used to ask a trial court to vacate a judgment, and can be filed in the trial court or the appellate court
Writ of Habeus Corpus – this is generally used to challenge the lawfulness of imprisonment, conditions of confinement of a prisoner, or other actual or potential restraint on the person’s liberty. It, however, can also be used as a tool to augment the record of an appeal, where the appellate attorney wishes to provide additional evidentiary support from outside of the trial record (for example, the appellate attorney wants to hold an evidentiary hearing as to whether the trial attorney provided effective, competent representation, and the trial record lacks that proof).
Having an understanding as to the proper procedures and guidelines required by local court rules and appellate procedure is critical during the time intensive undertaking of an appeal or writ. Furthermore, it is imperative that an attorney understand how writs can also be used during the appellate process to best serve the interests of the client. We will do everything possible to protect your rights, examine your case, and determine the best cause of action to clear your record and fight for you.