Criminal Appeals FAQ

  1. What is a Criminal Appeal?
  2. Where Can I Appeal?
  3. How Do I Appeal?
  4. What Issues Can I Appeal?
  5. How Does the Appeal Process Work?
  6. What About Petitions for Review to Supreme Court?
  7. Does Someone Have to Serve His Sentence While on Appeal?
What is a Criminal Appeal?

Whenever someone has been convicted of a crime in state or federal court, they have the right to appeal. On appeal, they can ask a higher court to review both the conviction and sentence for legal errors. Appeals are not like trials because the appellate judges do not take new evidence or re-evaluate the credibility of the witnesses. They just focus on whether trial proceedings were fair.

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Where Can I Appeal?

The court where a criminal appeal is heard depends on whether the conviction or sentence comes from a municipal, district, or superior court. A conviction or sentence in a municipal or district court, is appealed to the superior court where a judge hears and decides the appeal. If a conviction or sentence is in the county superior court, the state Court of Appeals hears and decides the appeal.

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How Do I Appeal?

To start an appeal, a person must file a Notice of Appeal. It is a short document explaining what is being appealed and which court should hear the appeal. In state court, the notice of appeal must be filed within 30 days of the day the judgment is filed. Typically, the attorney who handled the trial or plea will file the Notice of Appeal.

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What Issues Can I Appeal?

On appeal, the reviewing court will look at whether a legal error occurred in the lower court. These errors might include inadequate notice of the charges, unlawful searches and seizures, improper exclusion of important defense evidence, improper admission of irrelevant or prejudicial prosecution evidence, improper instructions to the jury, and insufficient evidence to support the verdict. Unfortunately, an appeal is not a chance to retry the case. It is not useful to argue, for example, that the judge or jury should not have believed the prosecution’s witnesses. A criminal appeal is generally limited to reviewing the evidence and arguments presented in the trial court. It must rely on the testimony, exhibits, and documents that were presented to the trial court, i.e., the errors must be based “on the record.” If someone wants to present new evidence, that must usually be done by filing a post-conviction petition, motion or writ.

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How Does the Appeal Process Work? An appeal takes a relatively long time compared to the trial court proceedings. The appellate process incudes several distinct steps and occur in the following order:

Order Transcripts and Designate Clerks Papers. The appealing party will contact court reporters, or court clerks for recordings, and order transcripts of the relevant trial proceedings. The process of identifying and ordering the record takes about a month. Preparing and filing the transcripts can take another couple of months. During this time, the other needed parts of the court file are copied and sent to the Court of Appeals.

Review the Transcripts and Pleadings. When the appellate record is ready, we review it to identify all the potential errors which could be raised on appeal. This is a painstaking and time consuming process, but it is critical to ensuring the best chances of success on appeal. This part takes a month or two.

Research Issues and Draft Briefs. After identifying the potential issues on appeal, we thoroughly research the law, evaluate the chances of success and how we can best achieve our client’s goals on appeal. We then draft the opening brief and reply to the prosecutor’s brief where we synthesize the law and the facts to make the most compelling case for relief that we can. This part of the process takes another two to three months.

Court of Appeals Review. After all the briefs are filed, the Court of Appeals schedules the case for oral argument or some other form of consideration. Notice will be provided to the parties and the hearings are usually open to the public. The Court of Appeals will issue a written opinion at some later date, but there is no time limit and it can take several months. A party is allowed to ask the Court of Appeals to reconsider its decision within 20 days. If there is not a request for reconsideration or further review, the Court of Appeals’ decision becomes final after 30 days when the mandate is issue.

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What About Petitions for Review to Supreme Court?

If someone does not win in the Court of Appeals, they have 30 days to ask the Washington Supreme Court to review the case. This is a critical part of the appellate process because review by the Supreme Court is discretionary and provides a venue to ask for a change in the law. The Supreme Court grants review in less than 10% of the petitions filed. We can provide particular effective assistance in the preparation of petitions for review based on years of experience crafting some of the most significant challenges to the law over the last 25 years.

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Does Someone Have to Serve His Sentence While on Appeal?

It is sometimes possible to obtain an order to stay the sentence or to permit someone to stay out of custody while the appeal is pending. This may require posting a bond. The trial court also has the broad discretion to deny an appeal bond. Although you can challenge the denial of an appeal bond, they are rarely reversed. Release pending appeal is strictly prohibited for certain crimes. We offer extensive appellate experience, prompt attention and the breadth of appellate knowledge to ensure the best potential for success on appeal.

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