By:  Brooke Elvington, Esq.

(Copyright, 2008-2018.  Note:  This article was written personally by Ms. Elvington and may not be reproduced without express written authorization)

Good legal representation in criminal appeals begins with a thorough explanation of the appellate process. Our firm will advise you of the realistic expectations for your case.

The criminal appellate process is essential in ensuring due process to every individual.  However, the process itself can be long and complicated, and thus, having experienced counsel at your side may be crucial.  Criminal appeals are commonly misunderstood, and not everyone wants or needs an appeal.  The following is a general outline of the criminal appellate process in the State of Florida.

What is an appeal?

If you, or a loved one, have ever been involved in the criminal arena, after the judge pronounces sentence, you probably heard the following statement:

     "You have thirty days from the date of this judgment and sentence to file an appeal."

There is no question that the above statement is a correct statement of the law; however, the first logical question for most must be, "what is an appeal?"

The Appellate Rule of Procedure 9.140 sets forth the proceedings for appeals within the State of Florida.  In general, an appellate court's sole function is to determine whether a trial court committed legal error.  

What is trial court "error"?

Trial court "error" generally means that at some point during the pre-trial, trial or sentencing proceedings, a judge made a ruling contrary to State or Federal law.  Determining whether a trial court committed some error during your case, begins by conducting a full analysis of the proceedings that occurred from the time action was taken to charge you with a criminal offense, through the trial or plea stages and up to sentencing.  Although it is impossible for any attorney to suggest to you what appellate issues, if any, are relevant to your specific case without a proper review, it is often helpful to look at common examples of trial court error.

Examples of issues raised alleging such error may include the following:

1.  The judge issued a search warrant to seize evidence from your property or person without probable cause to do so.

2.  Your attorney filed a motion to suppress evidence seized contrary to law, and the trial court denied the motion.

3.  During your trial, your attorney requested to excuse certain jurors, and despite the jurors' pronounced prejudices against you, the trial court denied the request.

4.  The judge permitted the State to introduce evidence during your trial that the Florida Rules of Evidence prohibit.

5.  The State introduced insufficient evidence of your guilt to proceed to a verdict, and thus, the trial court erred by not granting the motion for judgment of acquittal.

6.  The trial court erroneously instructed the jury on the applicable law, or the trial court failed to instruct the jury on a requested instruction such as self-defense.

7.  The actual sentence violates Florida law by exceeding the statutory maximum, or you received a sentencing enhancement such as Habitual Felony Offender or Prison Release Re-Offender, and the evidence did not support the enhancement.

​Of course, these are just some of the examples of possible error.  For any attorney to determine whether your case contains error, and perhaps more importantly, whether that error calls for reversal, requires a detailed analysis.  There are often questions as to whether trial counsel properly preserved, (objected to the error), and whether the error is "harmful." 

An experienced appellate attorney can help guide the client in understanding these issues.  In addition, the appellate attorney can be beneficial to trial counsel during the pre-trial, trial and sentencing stages for purposes of appellate-consultation.

Do you want an appeal?

Not everyone wants or needs a direct appeal.  In cases where an appeal is not desirable or possible, there are still other avenues to pursue post-conviction relief.  Of course, that decision must be made by you, and it is advised that you obtain the advice of experienced counsel prior to making such important decisions.

Sentence Reduction and/or Modification:  Rule 3.800(c)

In some cases, the person's intention may be to request that the trial court reduce and/or modify his his/her sentence.  If you believe that the trial court lacked certain information before sentencing you, or you believe that additional information should have been presented, you may file a motion under Florida Rule of Criminal Procedure 3.800(c) in the trial court asking for your sentence to be reduced or modified.

There are strict time limits for motions for sentence reduction or modification.  The trial court retains jurisdiction for such purposes for sixty days following your original judgment and sentence; thus, any motion must be filed within sixty days from your sentencing, and the judge must actually rule on the motion within that time period unless he/she specifically retains jurisdiction for an additional time period.  The time limits are important and must be followed.  Even if the judge wants to grant a motion after the sixty days, and issues an order granting your motion, the State can appeal.  

Keep in mind that the rule applies to final judgment; thus, if you have already appealed your final judgment, you may file a motion for sentence reduction and/or modification within 60 days of the appellate mandate.  

​You generally cannot appeal the denial of a motion for sentence reduction.

Motion to Withdraw Plea: Rule 3.170

In other cases, the person's intention may be to withdraw his/her plea.  If there is legal cause, (such as an involuntary plea), you may file a motion asking the judge to withdraw your plea under Florida Rule of Criminal Procedure 3.170.  The motion must be filed within thirty (30) days of your sentence, and if the Court denies your motion, you may be able to appeal the decision.

​If you are considering withdrawing your plea, the ultimate outcome may depend upon how soon you act.  Although you may request that your plea be withdrawn within 30 days of your sentence, you may also move to withdraw your plea prior to sentencing.  The legal standards governing motions to withdraw pleas are significantly different for motions made prior to and post-sentencing.  An example of a circumstance warranting a motion to withdraw a plea is where a person accepts a plea based upon his understanding of the sentencing guideline range, but later determines that the scoresheet, as offered to the trial judge prior to sentencing, was erroneous.  

Motion to Vacate Judgment and Sentence: Rule 3.850

If the thirty days for filing a Rule 3.170 motion have lapsed, you may still file a motion to vacate the judgment and sentence under Rule 3.850.  A defendant has two years from when his sentence becomes "final" in which to file a motion. Typically, that means you have two years plus thirty days to file if no appeal was filed, or two years from the date the appellate court issued the mandate if a direct appeal was taken.

Under Rule 3.850, the most common claim raised is ineffective assistance of trial counsel. If a defendant can show that his trial attorney's actions were deficient and that he was prejudiced by this deficient behavior, he may be able to withdraw his plea or have the results of the trial overturned. Typically, you only have one opportunity to file a Rule 3.850 motion. 

Motion to Correct an Illegal Sentence: Rule 3.800(a)&(b)(2)

If you believe you received an illegal sentence, you can raise this issue with the trial court at any time. This means even if the time for filing an appeal has lapsed, you may still be able to file a motion under Rule 3.800(a) attacking the legality of your sentence. Only issues that are apparent on the face of the trial court record can be addressed under this rule. These claims usually include: sentence exceeds the statutory limits for the offense, improper calculation of jail credit, discrepancies between the written and oral pronouncement of sentences, failure to orally pronounce special conditions of probation, and improper sentence enhancements, such as HFO and/or PRR.  

To help determine whether you should file a direct appeal or instead pursue your post-conviction options under Rules 3.170, 3.800 or 3.850 and to discuss the possible benefits and/or consequences, call our office for a free consultation.

Can you appeal?

If you determine that you want an appeal and that there are possible issues of trial court error, the next question must be whether you can appeal.

In general terms, a defendant may appeal a final judgment and sentence. Appellate Rules of Procedure 9.140 sets forth the specific criteria for permissible appeals. A defendant may appeal a final judgment adjudicating guilt, a final order withholding adjudication after a finding of guilt, an order granting probation or community control, (whether or not guilt has been adjudicated), orders entered after final judgment or finding of guilt, including orders revoking or modifying probation, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850 or 3.853, or an illegal sentence.

If you pled guilty or nolo contendere, you may still appeal a final judgment and sentence if you specifically reserved the right to appeal during your plea colloquy. For example, if your trial counsel filed a motion to dismiss, the motion was denied and you then pled guilty, so long as you reserved your right to appeal that dispositive motion to dismiss, you may appeal that ruling. A defendant that pleads guilty may also appeal the judgment and sentence if the trial court lacked jurisdiction to enter the sentence, a violation of the plea agreement (if preserved by a motion to withdraw plea), an involuntary plea (if preserved by a motion to withdraw plea), or a sentencing error (if preserved). 

You decided to Appeal, now what?

TIME IS OF THE ESSENCE!

The entire appellate process involves highly specific rules and procedures that must be followed in a timely fashion. If you fail to follow the rules of procedure, you may be barred from appealing your case. After you are sentenced, you have thirty days to file a Notice of Appeal with the trial court. Within approximately sixty days after the Notice of Appeal is filed, the Clerk of Courts prepares the Record of your entire case. The Record includes all official pleadings, transcripts of your trial and sentencing.

Appellate Record.

The appellate record constitutes the entire universe of your appeal. The only matters that may be appealed are those contained within the record. If the record does not contain important documents or transcripts related to your case, we can ask the Clerk to supplement your record; however, the Appellate Court will not consider any matter on appeal that is not within the record.

Initial Brief.

After the record is complete, the Appellate Attorney reads the entire record, analyzes your case for legal issues, conducts legal research and drafts the Initial Brief.  There are strict deadlines regarding the time for filing briefs; however, if the Appellate Attorney requires additional time to analyze your issues, he/she may request such from the Court. 

Answer Brief.

The Attorney General receives your initial brief, and generally files an Answer Brief outlining its position on the issues raised in the initial brief. If the Attorney General does not file a cross-appeal, the Answer Brief must be limited to issues raised in the initial brief.

Reply Brief.

After the Answer Brief is received, you have one more opportunity to reply to the Court. The Reply Brief must not include any new issues, and must be limited to matters argued by the Attorney General in its Answer Brief. 

Oral Argument.

Oral argument is the opportunity to present the arguments before the Appellate Court, and perhaps more importantly, respond to the Court's concerns. Depending upon the District Court of Appeal in question, your oral argument may be limited to 15-20 minutes, most of which will be spent on answering the Court's questions. The request for oral argument can be made by either party, and must be made prior to the filing of the last brief. 

All of the briefs are filed, oral argument (if requested) is complete - now what?

After the briefs are filed and any argument completed, the entire Record and all filings are given to the three Judge panel. There are no deadlines for the Court to issue its ruling, and until it does issue the ruling, there is quite simply a lot of "sitting and waiting." The Court must have time to fully analyze your case and the issues presented. In practice, rulings are generally issued within a couple of months to nearly one year, and possibly beyond…

You must have patience throughout the process, as generally once the briefs are completed, the work is out of the attorney's hands. 

Am I entitled to a Bond pending Appeal?

The short answer is - it depends. Florida law permits bond pending appeal, however, there are statutory exclusions for bond and other considerations that must be discussed prior to filing a motion for bond.

Court Ruling.

Most of the District Courts throughout Florida issue opinions on Wednesdays and/or Fridays.  Of course court procedures are subject to change. Anyone can access the opinions on www.FLCourts.org.  Simply click the appropriate District Court and navigate to the heading "OPINIONS."

The Dreaded "PCA"

The Court does not always issue written opinions. In fact, the Court issues more "PCAs" than written opinions. A "PCA" literally means "Per Curiam Affirmed" - in layman terms, it means the appeal is denied. If you receive a "PCA" in some cases you may still seek relief from the Court. For example, if the Court overlooked issues of fact or law or if the issues presented are of great importance, you can file a motion for rehearing, a motion for rehearing en banc (heard by the entire Court), a motion for certification of an important issue, or a motion requesting a written opinion. These motions should not be abused and should only be filed in instances where the Attorney believes there is just cause. Motions for rehearings are not filed to re-argue the same issues on appeal. If the Court denies any final relief, a PCA may mean the end of your direct appeal.

Opinions

Written opinions may be issued to reverse or affirm a trial court's order. Either side may file a motion for rehearing; thus, regardless which party initially prevails, a motion for rehearing may be filed, and your case will not be final until the Court rules on the motion.

When does the Court's ruling become final?

The Court's ruling will not become final until it issues a Mandate. Either party may ask for a rehearing within 15 days from the issuance of the Court's initial ruling. The mandate will be issued after the time allowed for rehearing, or after the Court rules upon a motion for rehearing. 

Obtaining Florida Supreme Court Jurisdiction:

The District Courts of Appeal are, in many cases, the last line of attack. However, in certain circumstances a party may seek Florida Supreme Court jurisdiction to review a district court opinion. Florida Rules of Appellate Procedure 9.030 sets forth the jurisdiction of the Florida Supreme Court. Simply because a party is dissatisfied with a particular ruling does not entitle them to Supreme Court review. There are two separate categories for the Court's jurisdiction - mandatory jurisdiction and discretionary jurisdiction. In criminal matters, the Supreme Court must review sentences imposing death, and decisions of district courts declaring a state statute invalid. In most cases, parties seek to invoke the Court's discretionary jurisdictions. In general, discretionary jurisdiction may be sought to review decisions of district courts that (1) expressly declare a state statute valid; (2) expressly construe a provision of the state or federal constitution; (3) expressly effect a class of constitutional or state officers; (4) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (5) pass upon a question certified to be of great public importance; (6) are certified to be in direct conflict with decisions of other district courts. However, as the word "discretionary" suggests, even if the Supreme Court can grant discretionary review, it does not have to grant the review.

The Appeal is over, now what?

If you prevail, what happens next depends entirely upon the specific relief offered. If the Court remands your case it could be for a variety of procedures including a new trial, a new sentencing hearing, or it could be for the Trial Court to enter an Order dismissing your case.

If you did not succeed, you may still have post conviction remedies. Within two years from the date of the mandate, you may file a motion for post conviction relief. The Post Conviction Process can be as complicated, if not more complicated, than the appellate process. If you are interested in having your case reviewed for such relief, contact our office and we will schedule a consultation.