Appeals

Choosing the right attorney for your appeal

You may be thinking to yourself: “Aren’t all lawyers the same? Can’t any attorney do my appeal?” If you think the answer to those questions are “yes,” you could be making a huge mistake. Appellate law is not the same as trial law; it’s a specialty. There are no juries and no trial judge, only a panel of appellate judges (usually 3), your briefs (written arguments), and oral argument. An appeal is not a re-trying of a case, so an appeals attorney must be skilled in investigating the trial, uncovering mistakes, and arguing a different take on facts that have already been admitted. The focus is on finer points of law or complex legal issues that few attorneys are equipped to handle. The same arguments that trial lawyers use to persuade judges and juries fall on deaf ears in an appellate court. That’s why you want to hire an experienced Miami appeals lawyer.

Winning an appeal is an uphill battle because, almost always, the case has already been lost at trial. You are asking for a second try. That’s why any misstep, no matter how small, can cost you the case. Many trial attorneys at Florida know this, which is why they don’t even take on appeals cases. Others lawyers may try but don’t have the knowledge, experience, and skills to achieve desired results. Jordan Redavid is up to the task. Let him fight your appeal.

What can I appeal?

Unfortunately, you cannot file an appeal in every case. There are rules governing what can and cannot be appealed. Normally, only final judgments can be appealed. This includes any criminal conviction or finding of liability arising from a jury trial. Only when a judgement has been entered can a case be appealed. That’s why most criminal cases that resolve in a guilty or nolo contendre (no contest) plea bargain cannot be directly appealed. In some instances, however, a person can specifically reserve the right to appeal a “legally dispositive issue” (an issue that, had the trial court judge ruled in your favor, the case would have been resolved without the need for a trial).

How long does an appeal take?

There is no fixed timetable for appeals, but understanding how the process works can help estimations. In Florida, a notice of appeal must be filed within 30 days of a judgement. A decision about whether or not to appeal must be made expeditiously. First, a lawyer needs to decide whether or not you are entitled to appeal your case. If you are, there is a formal process by which transcripts, documents, and other papers (the “record”) are collected before your attorney will file a Notice of Appeal. From there, extensive legal research and writing takes place. The party appealing (”appellant” or “petitioner”) files an initial brief; the opposing side (“appellee” or “respondent”) files an answer brief; and the appealing party may choose to file a reply brief after that. After briefing, there is usually an oral argument, after which the appellate court will take some time to consider the arguments and make a ruling.

Clemency, Pardons, & Restoring Civil Rights

Clemency is a formal petition for mercy from the government, usually for a lessening of a criminally-convicted person’s sentence. In death penalty cases, this can mean sparing someone’s life in exchange for a lifetime sentence. When a government official sets aside a punishment for a crime that, is a pardon.

Many attorneys market themselves as appellate lawyers, but few have the experience, work ethic, and knowledge to advance an appeal properly.

Other Forms of Post-Conviction Relief

Motion to Correct Incorrect or Illegal Sentence: Florida Rule of Criminal Procedure 3.800 provides that “[a] court may at any time correct an illegal sentence imposed by it…” Sometimes, a sentence may need to be readdressed because it amounts to an illegal sentence, for example, if the sentence imposed exceeds that permitted by law. This would fall under a 3.800 post-conviction motion. Jordan Redavid is prepared to uncover incorrect sentences when they have been imposed.

Failure to Award Proper Jail Credit Time Served: Florida Rule of Criminal Procedure 3.801 allows for someone to move the court to revisit a sentence if it’s believed that the convicted person was not afforded all credit for time served (“CTS”) in county jail before sentencing. However, like many appeals or post-conviction options, there are time constraints to consider. For CTS, that time limit is within one year from when the sentence became final.

Writ of Habeas Corpus: When a defendant has been sentenced and is serving the sentence but has not yet appealed, he or she may seek release by way of a writ of habeas corpus. A writ of habeas corpus — literally to “produce the body” — is an ordered to deliver an imprisoned individual to court. Courts treat these a request for “extraordinary” relief, they are difficult to obtain.

Motion to Vacate or Set Aside Sentence (“3.850 Motion”): In Florida, you can file a “Rule 3” or “3.850” motion, as they’re colloquially referred to. Florida Rule of Criminal Procedure 3.850 allows a sentence to be challenged if one of 6 grounds are present. However, there is a two-year time limitation imposed on litigants considering filing a motion pursuant to this rule. While there are some exceptions, like newly-discovered evidence, these exceptions require great care. Far too often, convicted people file 3.850 motions pro se (that is, on their own behalf) and get summarily denied because they failed to account for all of the requirements under the law. Jordan Redavid knows how to handle these matters promptly and properly.

Grounds for a Rule 3 motion:

  • The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
  • The court did not have jurisdiction to enter the judgment.
  • The court did not have jurisdiction to impose the sentence.
  • The sentence exceeded the maximum authorized by law.
  • The plea was involuntary.
  • The judgment or sentence is otherwise subject to collateral attack.

Most people don’t realize that, in Florida, having a felony conviction can have a wide range of consequences, like losing the right to vote or hold public office. If you are interested in getting back your civil rights, call Redavid Law PLLC today at (305) 938-9939.

For help right away, or a free initial consultation, email any time of the day or night, or call 305-938-9939. I answer calls and email 24/7.