Appeals v. Post-Conviction Motions
You may have heard the word “appeal” before, maybe from your own case, someone else’s, or on TV. It’s less common for people to talk about “post-conviction motions.” What’s the difference? Isn’t an appeal a post-conviction motion? It might be confusing, but appeals and post-conviction motions are two different mechanisms used to challenge a conviction. This blog post is a quick explainer.*
Appeals
What it is: An appeal occurs after you’ve been convicted, either at trial or by plea, and challenges a decision (or decisions) a judge made at trial or sentencing. For example, the judge may have allowed in evidence that he/she should not have, or maybe didn’t allow the defense to present evidence to the jury that should have been admitted. Or, at sentencing, maybe the judge applied a sentencing guideline incorrectly, resulting in a higher sentence.
Where it happens: The appeal is filed and litigated in the appellate court. In state court, the attorney appeals to the District Court of Appeal (in Miami, that’s the Third District Court of Appeal; in Orlando, that’s now the Sixth District Court of Appeal). In federal court, all three of Florida’s federal district courts appeal to the Eleventh Circuit Court of Appeal. If the appellate court issues a decision that one side doesn’t like, that side can sometimes appeal further to either the Florida Supreme Court (for state cases) or the United States Supreme Court (for federal cases).
What the defense attorney does: If the appeal follows a trial, the defense attorney will start by reading the trial transcripts, even if the defense attorney was the one who tried the case, and any motions and orders issued by the court. This helps the attorney pinpoint every legal issue that came up before or during the trial with the judge’s rulings. If the appeal follows a sentencing, the defense attorney will read the sentencing hearing transcript and any sentencing-related document.
After reading all relevant materials, the attorney will draft and file an Initial Brief, which is the document containing all argument as to why the trial court made incorrect rulings. Then, the government will file a Response Brief, arguing that the defense is incorrect, and the judge made correct rulings. The defense then files a Reply Brief, because the appealing party gets the first and last word. The appeals court will then decide whether it wants to hear any argument in court about the appeal. This is called Oral Argument. At oral argument, each side gets a set amount of time to argue their points and a panel of three judges asks questions. After oral argument, the court will do its own research, consider the arguments, and issue an Opinion with its decision.
Post-Conviction Motions
What it is: A post-conviction motion is a way to launch other legal challenges that aren’t available on appeal. These challenges don’t have to do with the judge’s decision (like whether a piece of evidence should or should not have been let in at trial). The two most common grounds for post-conviction relief are (1) newly discovered evidence and (2) ineffective assistance of counsel. There are other, less common grounds for filing a post-conviction motion to vacate a plea or conviction that are very fact specific.
Where it happens: Unlike an appeal, the post-conviction motion is first filed at the trial court level. If the trial court makes a decision that one side doesn’t like, that side can appeal the decision up the chain as described above.
What the defense attorney does: Like appeals, post-conviction motions often require the defense attorney to review transcripts of the trial and/or hearings. In the case of newly discovered evidence, the attorney will often look for how the new evidence would have altered the trial. For ineffective assistance of counsel cases, the attorney will look at the entire record to see what the trial attorney did or did not do, such as file motions, take depositions, follow up with lines of investigation, communicate with the client, launch objections at trial, etc. Then the attorney will draft a post-conviction motion, the government will respond, the defense will reply, and there will sometimes be an evidentiary hearing before the court.
*The material contained within this blog post is not legal advice and is not to be construed as such. Please consult with an attorney before making any decisions relating to your case.
