Appeals and Post-Conviction Relief
During a criminal trial, there are times where procedural and legal errors occur, which are grounds for an appeal, however your attorney must timely file an appeal. Accordingly, it is prudent for you to contact and retain an experienced appellate counsel who is familiar with both the federal and state appeals process. The Law Offices of Mark Eiglarsh can review your case, and explain your options for post conviction relief. A criminal conviction is one of the most taxing events an individual could face in their lifetime, and it’s important to know all available remedies available. A criminal conviction is not the end of the road. Call the Law Offices of Mark Eiglarsh immediately to begin your defense!What Does “Post Conviction Relief” Mean?
A post conviction relief is a general term related to a category of legal remedies available during the appeals process for numerous convictions such as:
- Appeals (Federal and State)
- A request to a higher (appellate) court for that court to review and change the decision of a lower court.
- Apprendi Cases
- In the Apprendi v. New Jersey 5-4 decision, the Supreme Court held that the Constitution requires any fact, which increases the penalty for a crime beyond the prescribed statutory limit, other than the fact of a previous conviction, must be submitted to a jury and proved beyond a reasonable doubt.
- Post Conviction Motions
- After a direct appeal, or if a defendant rejects a direct appeal, a defendant could file a motion for post-conviction relief. The defendant is only limited to:
- The claims that the trial court had no jurisdiction to convict him or her;
- That his or her sentence exceeds the maximum possible for the crime;
- Or that the conviction or sentence violates constitutional or state law.
- When the defendant decides to change his or her plea to guilty. Usually a prosecuting attorney will agree to the plea bargain, however, if you plead guilty then you will give up many constitutional rights. Each judge handles changes of plea a little differently.
- This motion, which is seldom granted, is made after judgment when there was a clear significant legal error at trial or the judge mistakenly came to an incorrect result. As such, this motion must be made a few days after the judgment.
- Rule 9.100 of the Florida Rules of Appellate Procedure states that a party may file a petition for writ of prohibition in an appellate court to prevent a lower tribunal from the improper use of judicial power. A defendant in a criminal proceeding may petition to the superior court for a writ of prohibition to prevent an inferior court from proceeding with the case because it does not fall under its jurisdiction.
- Florida Rule of Appellate Procedure 9.140(b)(1)(E) states that the defendant may appeal an unlawful or illegal sentence.
- When a sentence is legal, the modification (increase of sentence) is invalid. However, a court may reduce (modify) to include any of the requirements relating to probation and community control, a legal sentence imposed by it within 60 days of its imposition; after the receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal; after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence; or if further appellate review is sought in a higher court or in successively higher courts, after the highest state or federal court to which a timely appeal has been taken under authority of law, or when a petition for certiorari has been timely filed under authority of law, has written an order of affirmance or an order dismissing the appeal and/or denying certiorari.
- A writ of certiorari is a common law device by which an upper court can direct lower courts to send up the record of a pending case so that the upper court can be informed of events below and evaluate the proceedings for regularity. For example, The U.S. Supreme Court uses certiorari to pick most of the cases that it hears.
- The writ of habeas corpus is a remedy to secure the release, by judicial order, of persons who are either imprisoned or detained. A properly issued writ of habeas corpus supersedes all other writs.
- Mandamus is governed under Rule 9.100 of the Florida Rules of Appellate Procedure. Writ of Mandamus is a common law remedy that is used to administer an established right by convincing a public officer or agency to perform a duty required by law.