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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW
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The Oklahoma Legal Group Blog

What is a Criminal Appeal?

Adam Banner - Wednesday, March 08, 2017

What options are available after you or a loved one is convicted of a crime in Oklahoma? While most have heard the buzzwords, few outside the legal community (and few within it) know the specifics of actions such as a direct appeal, post conviction relief, and federal Habeas Corpus. Here is a primer for anyone interested in potential collateral attacks on a criminal conviction.

When you hear the word “appeal” most people have a very basic understanding of the term. I’ve had plenty of folks call me for advice on a family law or civil lawsuit appeal, believing that I can help since I technically do handle appeals...the issue though, is that I only handle criminal appeals.

While there are specific rules and guidelines that seriously distinguish appeals in different areas of the law, there is one principle that stays consistent across practice areas: an appeal is a request for review of a decision. In law, an appeal is the process of asking a court to review a previous ruling by another court. I only handle criminal cases and criminal appeals, so this discussion will focus solely on those areas of the law.

In the most common of situations, someone convicted of a crime in Oklahoma will file an appeal with the Oklahoma Court of Criminal Appeals. This usually occurs after a defendant has been convicted at jury trial. When a defendant challenges his or her conviction in this manner, we are referring to a “direct appeal.” It is called a direct appeal because the appeal is lodged directly to the Court of Criminal Appeals (as opposed to some appellate actions which may begin in the district court of record – more on that later).

A direct appeal from a verdict of guilt is guaranteed to every person convicted at trial of a crime in Oklahoma. If the defendant (now known as the appellant) cannot afford to retain private counsel for the appeal, then he or she will be granted an appellate attorney through the Oklahoma Indigent Defense System (OIDS). The State of Oklahoma, through the prosecuting District Attorney, is represented on appeal by the Oklahoma Attorney General. A direct appeal is a lengthy process, and can easily take anywhere from 1-2 years to complete, with some taking even longer.

A direct appeal is initiated by counsel filing a Notice of Intent to Appeal and a Designation of Record in the trial court. These documents must be filed within ten (10) days of the sentence being ordered in open court. The now file-stamped documents must then be filed in the Court of Criminal Appeals within ten (10) days of filing in the trial court. In order to “perfect” the direct appeal, counsel must also file a Petition in Error within the statutorily mandated timeline. After the initial documentation is filed and completed, both the attorneys for the appellant and the State will file briefs arguing the merits of the appeal. After the case has been briefed, the Court of Criminal Appeals will either grant or deny the appeal. This can be done in either a published or unpublished opinion.

Direct appeals are not the only type of appellate review available to a criminal defendant. After the direct appeal has been completed, a defendant may wish to appeal the Court of Criminal Appeals opinion to the federal government through a Writ of Habeas Corpus. After the appeal has entered the federal system, any adverse ruling would ultimately be petitioned to the Supreme Court of the United States.

After the direct appeal process, defendants also have the ability to file a Post Conviction Relief Application. This can be accomplished by the defendant in his or her individual capacity, but that is strongly discouraged. Just like any other serious situation, it is best to rely on the expertise of someone who is trained to handle appellate and post conviction cases. Just as it would be a horrible idea to operate on yourself, representing oneself in court, let alone in a difficult process such as an appeal or post conviction, is a very dangerous proposition

A post-conviction application alleges that there is some error in the original case that requires relief on the part of the defendant. Usually, post conviction cases will rely on either newly discovered evidence or some sort of constitutional violation that renders the conviction inherently unjust or illegal.

It is difficult to gain relief through a post-conviction application. This is especially true since, unlike a direct appeal, an application for post conviction relief must first be filed though the district court in which the original conviction occurred. Even more daunting is the fact that the original district judge who heard the case at plea or trial will most likely be the judge who handles the post conviction relief application.

The task is less difficult when dealing with something such as newly discovered evidence; however, it can become very difficult when using post conviction to request an appeal out of time so that a defendant may be allowed to withdraw his or her guilty plea. When seeking this relief, the burden is on the defendant to show that his or her guilty plea was not knowingly and voluntarily entered. You will be hard pressed to convince a district judge that he or she allowed a criminal defendant to enter a plea that was not knowing and voluntarily offered. On this note, also realize that a defendant has ten (10) days form the date of sentencing to file a motion in the district court to withdraw his or her guilty plea. The district court must then hold a hearing to determine whether or not the defendant will be allowed to withdraw his or her guilty plea. If the judge denies the request, then the defendant can file a writ of certiorari asking the Court of Criminal Appeals to take jurisdiction of the case and allow him or her to withdraw the plea.

Back to post conviction: this process should be handled in two stages. The first stage of the process involves research both into, and outside, the court record itself. Anyone doing his or her due diligence in post conviction representation will review the entire district court record. All motions, court minutes, orders, and hearing transcripts must be thoroughly read and re-read in order to confirm whether or not adequate error exists in the record which could, in good faith, support the application for post conviction relief.

Other appellate procedures include “extraordinary writs,” such as a writ of mandamus and a writ of prohibition. Both processes are also referred to as interlocutory appeals, because the appeal is initiated, and finalized, prior to the case or issue being resolved in the original court of jurisdiction. These appeals occur when a petitioner requests the Court of Criminal Appeals to take jurisdiction of the case to decide an issue. These appeals are rare, but can often help resolve erroneous rulings by the district court.


 






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