Frequently Asked Questions About Criminal Appeals

Just because you were convicted does not mean that the case is over. At Bodiford Law, P.A., founding attorney Joe Bodiford has handled countless issues on appeal, from sufficiency of the evidence, to sentencing issues, to suppression issues, and highly technical jury instruction issues. He has also handled the appeal of post-conviction motions in both state and federal appellate courts in Florida.

Here are Mr. Bodiford's answers to some questions he often receives about the appeals process. Please contact our firm to discuss your particular case.

1. What is an appeal?

An appeal is the process by which a higher court reviews the case for errors. Errors can be in the judge's rulings, the sentence that was imposed, in the jury trial process. The issues are really unlimited, and are only as good as the trial lawyer that set them in motion. In other words, your trial attorney has to make motions and objections during your trial. The trial attorney has to make a good record in case you lose, so that the issues are "preserved" for the higher court to review.

An appeal is not a retrial, or a time for the higher court to look at the facts and decide that someone is not guilty. While there are very limited circumstances in which an appellate court can review the facts, an appeal is a review of the process. The higher court looks to make sure that all of the legal rulings were correct and that your rights were properly protected.

2. When would I need to appeal?

If you have gone to trial and lost, you should appeal. If your attorney filed a motion to suppress and the judge denied it, you should appeal. If you went to hearing on a violation of probation and were found to be in violation, you should appeal.

You should appeal any adverse decision against you. If you do not, then you may be giving up not only a chance to have your case reversed, but the right to pursue other avenues of relief later. For most post-conviction motions, you have to have appealed your case first.

3. How do I appeal my conviction or sentence?

An appeal is a very complicated process and should only be handled by an attorney skilled at preparing the record and writing the brief. Many trial attorneys don't even know how to file for an appeal. Joe Bodiford regularly lectures trial attorneys in this area, in his seminar Criminal Appeals: Bridging the Gap from Trial to Appeal.

4. Do I need a lawyer to appeal?

Technically, no. Practically, yes. The appeals process is too complicated for someone not trained in criminal appeals — and even for most criminal lawyers. Not only is it difficult to make sure the record has all the correct pleadings and transcripts, writing an appellate brief is time- consuming and complicated. In fact, writing a good appellate brief is an art. If one is not familiar with the appellate court rules, the appeal may be dismissed.

5. Can I appeal "lack of evidence"?

As explained above, generally, no. The appellate court does not act as a new jury or new fact-finder. While there are circumstances in which you can allege that the lower court should have dismissed the case for insufficient evidence, those cases are rare. The appellate court will look for mistakes in the process, and will not substitute its judgment of the facts for that of a jury or lower court judge.

6. Can the state appeal a "not guilty" verdict?

No! Once the jury has found you not guilty, double jeopardy prevents the state from appealing the jury's decision. That is a fundamental protection of the U.S. Constitution.

However, the state can appeal the granting certain motions. If you move to suppress evidence, alleging that it was illegally obtained, and the trial court judge grants your motion, then the state can appeal that decision.

7. What is an "appellate brief"?

An appellate brief is the actual document that contains the issues and arguments. Think of it as a laundry list of gripes and complaints. The brief has to have a complete and accurate statement of the facts, and arguments that are supported by case law. Most criminal defense attorneys have never even started an appeal, much less written an appellate brief. Joe Bodiford has personally authored dozens of successful appellate briefs in criminal cases.

8. Can I prove ineffective assistance of counsel on appeal?

No. That issue is reserved for post-conviction motions (Rule 3.850 in Florida state court, or 18 U.S.C. 2254 and 2255 in federal court). There are reported cases where an appellate court reversed a case because of ineffective trial attorneys, but those cases are rare and only seen in extreme cases of bad counsel.

9. What happens if I win on appeal?

That depends on what you are appealing. If you lost at a jury trial, then you may be entitled to a new trial. If you lost a suppression motion, and you win on appeal, then the case will be sent back to the lower court and the state prohibited from using the suppressed evidence. If you are appealing a sentencing issue, then you will be re-sentenced.

10. How does an appeal get started after a conviction?

After a trial or a plea, there has to be a sentencing hearing, at which time the judge will enter a judgment and sentence. That ends the trial case. At that point, a notice of appeal must be filed within 30 days of that date. No ifs, ands, or buts — if the appeal is not filed within that time, the appellate court will not have jurisdiction, and the appeal will not take place.

11. Can I appeal if I entered a plea?

Not unless you file a motion to correct sentence, or a motion to withdraw your plea. If you enter a plea, you are telling the court you want to end your case. Once the plea is entered, it's presumed that you accept the sentence and the case is over. You have to have something to appeal. If you filed a motion to dismiss or suppress before your plea, and that motion was denied, you can appeal as long as you have specifically reserved the right to appeal. If no motion was filed, and you are not satisfied with your plea/sentence, then you have to file some motion and have the judge act on it in order to have something to appeal.

12. Where does the appeal get heard? In other words, what court handles the appeal?

The appellate, or higher, court handles the appeal. It is not heard in front of the trial judge.

13. Do I get to go to court for the appeal? Are there hearings like in a criminal trial case?
If you or your loved one is in custody, no. Appeals are almost all done by paper filings. If there is an oral argument granted (where the appellate court actually wants to hear from the lawyers), there will be one court date, and anyone is welcome to attend. Prisoners are not transported for oral arguments.

14. How long does the appeal process take?
Generally, about a year to a year and a half.

15. Do I get to see the brief before you file it?
I will have conferences with the appellant (my client) as the brief is being prepared, but generally I do not send it to the client for review before I file it. Of course, there are always exceptions to the rule.

16. What does the attorney look at when preparing the appeal?
The court file and any transcripts of hearings or trials.

17. How much does an appeal cost?
There are filing fees with the appellate court, and costs of preparation of the record. If the actual defendant/appellant has no money, there are times when the state of Florida will pay those costs. My attorney's fees are calculated on a case-by-case basis, depending on the complexity of the appeal, the issues, whether it was a short hearing or a long trial, etc.

Get Answers To The Rest Of Your Questions

Call Bodiford Law, P.A., today to discuss your case at a free consultation: 850-222-4529 (for existing clients) and 850-583-7381 (for new clients). You may also contact us online.