In Arizona, there are two basic means of challenging your conviction: Appeal and Post Conviction Relief. This article will address the appeal process. And, in this brief article, there is no way possible to summarize the scope and challenges of what needs to be done. However, hopefully the following information will be helpful in pointing you to your next step.
When Does the Appeal Process Begin?
Who can file an appeal in state court?
In general, only a defendant who has gone to trial, been found guilty and been sentenced may file an appeal. Appeals normally do not apply if you entered a change of plea.
When to file
If your conviction was in a city or justice court, you have 10 days to file your notice of appeal. If the conviction was from the Superior Court, a notice of appeal must be filed within 20 days of sentencing.
How to file
You must file a notice of appeal, and I would recommend also filing a designation of record.
The Notice of Appeal is a short document filed with the court indicating your desire to appeal the case. The designation of record will tell the trial court to send its file, transcripts and exhibits to the appellate court.
What is an appeal?
If the conviction was in the city or justice court, the matter will be heard at the Superior Court. If the conviction was from the Superior Court, The appeal will be heard by the Arizona State Court of Appeals. At an appeal, the Court will only be looking at whether there were legal errors made. Factual arguments or issues involving counsel’s effectiveness are NOT heard on appeal.
What are briefs?
Briefs are booklets that detail the facts, the applicable law, and why the conviction should or should not stand. There is an opening brief (by the defense), a response brief (by an assistant attorney general), and an optional reply brief (by the defense).
What issues are raised in a brief?
The Appellate Court only cares about important legal issues that were wrongly decided, or that involve a new area of law. Attorneys object at trial so that legal issues are brought to the court’s attention. Arguments raised to the Court must be selective. The lawyer must decide which issues are strong enough to argue on appeal. Raising weak issues may dilute arguments on the stronger issues. More often, when issues actually exist, the Court may actually determine that the errors made no difference in the verdict. In fact, this happens often enough that it has been labeled “harmless error.”
Hopefully, the Appellate Court will find that there was a “fundamental error.” The Court would need to rule that the trial court or trial counsel committed a basic, glaring error. This would form the strongest basis for an appeal.
What happens after the briefs have been filed?
Patience is a virtue. The Appellate Court may set the case for consideration with or without oral argument. Once the case has been considered, the parties may wait months for a ruling.
What can the Court of Appeals do?
In making their ruling, the Court can affirm a conviction and sentence, or it can set aside all of a conviction, the sentence or order a new trial or argument. Please note, winning the appeal rarely results in a dismissal of the charges.
What happens after the decision of the Court of Appeals?
The losing side can request the Arizona Supreme Court to review the case. Very few of these submittals result in the Supreme Court accepting the case for review. If the Arizona Supreme Court denies the petition, you may then seek relief from the United State’s Court.
Common Mistakes in Appeals
- The appeal can’t begin until the defendant is sentenced. I can be retained prior to sentencing, but other than detailing potential issues to be investigated, the paperwork and hard work don’t begin until after the sentencing.
- Preserve your file. Your file should include all evidence whether used or not used at trial. Keep accurate records throughout the trial process. Any scrap of paper or digital file could make a difference at this stage.
- Missing timelines. Perhaps the most crucial. You cannot miss any court deadline. Extension are frequently granted. However, if a timeline is missed and the extension not granted, your case can be dismissed.
- Having unrealistic expectations. Hiring private counsel for an appeal or PCR can be expensive. As noted above, dismissals are rare. If you win the appeal, the more common result is a new trial or new sentencing.
To Learn More About the Appeal Process, Contact an Experienced Trial Attorney
The appeal process is complicated. As an experienced trial attorney, I know many of the pitfalls and errors that will need to be addressed when reviewing a case for an appeal.
Having already lost once, obtaining an objective review of your file and an experienced analysis of your chances on appeal, you need to have an experienced attorney fighting for you.
If you are considering filing an appeal or PCR, please contact me, Howard Snader. I am a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please call me at 602.899-1596 for your free case review.