Appeals

When convicted of a crime, oftentimes defendants may have a separate sentencing hearing. At times, the judge may grant a period of release prior to a defendant’s sentencing. In these cases, the judge will set bail for the convicted defendant’s release. The bail procedure can also be used for convicted defendants who are awaiting judgement on appeals. However, these circumstances are different depending on each case.

Bail Pending Sentencing

If you are convicted and awaiting a sentencing hearing, you may want to contemplate attempting to seek release from the judge. However, the judge will not simply grant any release request. You and your attorney must prove with clear and convincing evidence that you do not pose a flight risk, meaning you are not likely to flee the state or county, and that you do not pose a danger to the community, meaning that you are not likely to cause harm to the community you are convicted in. These are also the same circumstances that the judge sets bail on prior to the trial as well. If you were convicted of a drug related offense or a violent crime, it may be significantly more difficult to get a release on bail. Serious crimes offer fewer opportunities for a bail release pending a sentencing hearing, while the judge will likely be more lenient for minor crimes. On top of this, the judge will factor in things like:

• Criminal history
• Any history of failure to appear in court
• Any connections to the community you have; i.e. living, working, or having relatives in the area
• Likelihood to commit non-violent crimes while out on bail

Another thing to keep in mind is that now that you have been convicted, there is no longer the presumption of innocence; in fact, there is now the presumption of a conviction. This means that when the judge is factoring in everything to determine whether you are eligible for release, the odds are usually stacked against you, now that you are actually convicted of the crime you stood trial for.

Bail Pending Appeal

While awaiting appeal you may also have an opportunity to be released on bail as well. Specifically for release on bail pending appeals cases, you and your lawyer will need to show that the appeal is not frivolous, and not a delay tactic, in addition to the already established bail proceedings. For appeals on violent crimes or severe drug offenses it may be difficult to obtain a bail release. On top of this, appeals may not make it to the hearing stage so you may not even be granted the opportunity to have a bail amount set.

Talk to your lawyer about your options with bail. An experienced attorney may be able to convince the judge that it will help your case if you are able to discuss the matters face to face with your attorney.

If plead guilty to a crime, and face unfavorable terms about which you were not properly educated, it may be possible to withdraw your guilty plea. For instance, if you believed that a guilty plea would have provided a certain outcome, and in court, due to some exacerbating circumstance you are landed a harsher sentence than what you thought would be the outcome, you may have the opportunity to withdraw your guilty plea. This motion is typically employed if a defendant received poor advice from a prior lawyer, or acted on their own before obtaining an attorney.

The key for this motion to be put into use relies on whether or not the guilty plea was done in your best interest. If you pleaded guilty and suddenly discover an unforeseen penalty, or discover that a trial may have gotten you a more favorable outcome you may be able to withdraw your guilty plea. Likewise, if for whatever reason you were dissatisfied with your prior attorney, a withdrawal of your guilty plea may be exercised as well.

“Good Cause”

The standard of evaluation of this motion is the notion of “good cause,” meaning that you must provide sufficient and clear cause for your guilty plea withdrawal. Good cause is not the same as a mere claim that you entered your plea without knowledge of consequence, you must show that clearly because of your lack of knowledge or expertise, your guilty plea was not your best option. Some examples of this include:

• You entered a guilty plea without an attorney: If you are not represented by an attorney, you may not be aware of all your options, and you may feel as though pleading guilty is your only option. Attorneys are able to provide the necessary help and guidance to get you through the legal process. Certainly things like traffic tickets or municipal code violations may not necessitate an attorney, but a seasoned lawyer for criminal proceedings is almost always necessary.
• The guilty plea carried unforeseen consequences: If you plead guilty to a crime without knowledge of things like professional or state license revocation or suspension, you may have good cause to withdraw the plea. Certain crimes with exacerbating circumstances can result in punishments that are not common knowledge. An attorney will have proper knowledge of your crime and the punishments that fit the circumstances.
• You were dissatisfied with your attorney’s performance: If your attorney advised you poorly, you may have entered in a guilty plea that you didn’t quite understand or feel was right. You may be able to withdraw your guilty plea due to ineffective counsel, and seek a new attorney to continue the process.
• Your plea was not entered freely and voluntarily: All guilty pleas must be entered free and voluntarily. If you are under threat or bribery to plead guilty, you may be able to withdraw your guilty plea by proving so.

Sometimes in court, certain circumstances can lead to a wrongful conviction. At times these circumstances can be caused by error, poor judgement, or corruption. One motion that your attorney can file is known as a “motion for a new trial.” What this motion does is exactly what it sounds like. It sets up a brand new trial with a new jury. This is not a motion that is taken lightly. For the judge to call for a new trial your lawyer will need to meet the requirements and prove that the trial itself is flawed in some way. If the jury has been negatively influenced or impacted by some error you may need a new trial to prevent conviction.

Potential Causes for a New Trial

There are a number of reasons why you may want to file a motion for a new trial. Your lawyer may advise you to call for a new trial if one of the following happens:

• Jury Misconduct: This can occur if the jury by some means has received or obtained information outside of the what is admissible to the case itself. This information must be both pertinent and influential to the jury’s or the specific juror’s opinion of the case, and it must also affect you negatively.
• New Evidence: This can be considered as ground for a new trial if new evidence is discovered that can help your case. The evidence must be adherent to the court’s standards for it to be accepted and for a new trial to be warranted.
• Insufficient Evidence: If you and your attorney can prove that there was insufficient evidence for a conviction, you can motion for a new trial. If the jury has already provided a verdict of guilty, because of double jeopardy, instead of a new trial the charges may just be dropped.
• Trial Record Lost or Destroyed: If a court record or transcript is lost or destroyed, the defense no longer has anything to make an appeal with and they can call for a new trial based upon these grounds.
• Prosecutorial Misconduct: If a prosecutor engages in misconduct that results in jury prejudice against you, you may be able to call for a new trial. Misconduct entails things like bring up inadmissible or stricken evidence, improperly or predatorily cross-examinations of you or other witnesses, or appealing to the jury’s passion or prejudice.
• Error of Law: If the court itself has made a legal error such as improper rulings or failing to direct the jury properly you may also have grounds to request a new trial.

It is important to remember that for any of these factors to actually propel your motion to be granted, these factors must have impacted your negatively. It is not enough for them to merely happen; the jury must have been influenced or the case must have affected you before the judge will rule that a new trial is necessary.

After you either plead guilty or if you are convicted in court, you will be sentenced. A sentence is a measure of punishment that the judge deems to fit the crime that you were convicted of. In most misdemeanor plea bargaining cases, or in traffic offenses the judge will often deliver the sentence directly after a guilty verdict. However, the defense may elect to schedule a sentencing hearing for the conviction.

Sentencing Hearing

The sentencing hearing exists to give the judge, the prosecution and the defense an opportunity to discuss the charges, and also what an appropriate sentence should be. Both the defense and prosecution will be heard in order to reach a sentence. Like any other hearing, you still have the right to an attorney. You can also present evidence for your case, and present sentencing alternatives to the judge and prosecution. You will not, however, be given the opportunity to conduct cross-examinations.

The hearing is generally less restrictive and formal as a trial, but there are still certain rules in place. Throughout the trial, attorneys are given the chance to object to certain sentences, however, the objection must be meaningful. Judges must be willing to consider objections. All parties should be willing to consider rehabilitation over detention. Your defense attorney will likely want you to avoid jail time, and should be willing to pursue other methods of sentencing. It is important to remember that in a sentencing hearing, sometimes statements and evidence that was previously inadmissible due to illegal search or not being under oath of law may make an appearance at the sentencing hearing. In these instances, the defense must have notice of the use of these items for the prosecution to bring them against the defendant. Prior arrests that did not result in convictions, however, cannot be used against you, unless they have some sort of factual information that can be presented in a non-misleading way.

Your Sentence

While trying to determine what your resulting sentence will be, your attorney will want to suggest as many things as possible to reduce potential jail time. Your attorney will want to suggest options such as:

• Rehabilitation instead of incarceration: Jail time can potentially be avoided if you and your attorney are able to convince the judge that rehabilitation is a better option for you than serving a jail or prison sentence. This can work particularly in the case of drug and alcohol related offenses, or for first time offenders.
• Concurrent sentences: If you must be incarcerated your lawyer will want to argue for concurrent sentences. This means that sentencing for separate crimes does not need to be served one after another (known as “consecutive sentences”), instead they can be served at the same time, for a speedier release.
• Eliminating sentence enhancements: At the sentencing hearing the judge may decide to eliminate or dismiss a sentencing enhancement that you may have been found guilty of. This will likely reduce prison time.

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If you have been convicted of a crime, your next step is to either serve your sentence, or continue the fight in the appeals process. The appeals process is a one which you may undergo to try to get either an overturned sentence, charge, or dispute the outcome of the trial on the basis that there was some manner of error in the law, or during the judicial process. Things like prosecution misconduct, judge misconduct, jury misconduct, inadmissible evidence coming to light, or any number of errors can all affect the outcome of a trial. If you feel that one of the circumstances has caused your conviction, you may have a shot at the appeals process.

Appeals

Appeals begin after a conviction. Your lawyer will advise you on whether or not it is wise to begin the appeals process. In most cases, you can file a brief of the case to the appellate courts. Most appeals can be resolved at the level of a judge reviewing a case brief, however, certain times may necessitate both parties to enter the court for an appellate hearing. Your lawyer will represent your side and your interest in the appeal, and the prosecution will be there as well to argue their side. After the hearing ends, the judge will make a determination as to whether or not there was an error. If your are not successful in the primary appeal, there is one more step you can take to try and push the case through. It is possible to go to a higher court than the one to which you initially made the appeal.

Direct Appeal

A direct appeal is an appeal that goes above the court you initially filed with the to highest court in your state’s jurisdiction. In California, this is the Supreme Court of California, based in San Francisco. The court has the authority to decide whether the case will be reviewed or not, and is not obligated to review the case. Again with a direct appeal, you are still trying to prove that there was an error of either trial, judicial, or the law itself that interfered with proceedings and cause you to have a guilty verdict. While any case has the potential to be heard, it is rare that a case is up to the Supreme Court of the nation or state to be decided. Typically cases that go that far up the ladder are ones that deal with issues of legal interpretations, and also ones where two appellate courts have ruled differently on the matter.

Your lawyer will be able to advise you on the chances of your success with a direct appeal, and will know the best ways to try to get the court’s attention. Contact an attorney today to see what your chances are.

While incarcerated, detained or imprisoned, there is a course of action you and your attorney can take to remove you from where you are being detained, if your Constitutional rights are being violated. This action is known as a writ of Habeas Corpus. Habeas Corpus, also known as the “Great Writ” is in essence a call to bring you to face the court. The writ issues a court order to determine the legitimacy and legality of your imprisonment, and if necessary, your release.

What Does it Mean?

Habeas Corpus is a Latin phrase for “you should have the body” or “produce the body.” Every imprisoned individual has the right to file a writ of habeas corpus, however the success of the writ is not a given right. Any release or determination is at the discretion of an appellate judge. The purpose of this writ is to provide illegally, falsely, or improperly imprisoned or detained persons with the ability to gain a release. This writ ensures that imprisoned or detained persons do not have their rights violated. What it also does is see to it that if a writ is not granted, the prisoner can hear on what grounds upon which the government is permitted to hold them in detention. The writ of habeas corpus is, in essence, any defendants right against unlawful detention, and also the right for defendants to know exactly why they are being held.

Can it be Suspended?

Although the right to file a writ of habeas corpus is a guaranteed Constitutional right, there are times when prisoners may not petition for habeas corpus. These times are typically restricted to times of instability or danger to the government. This includes wartime, rebellion, or period of extreme civil unrest. This is outlined by the same section in the Constitution that empowers the writ itself.

How do I Put a Writ of Habeas Corpus Forward?

If you are working with a lawyer, he or she will be able to put this information forward to the courts for you. However, detained persons are able to file this writ themselves. The first thing to consider is that you must file habeas corpus with the state court prior to seeking it in a federal court. There are separate proceedings for both the state and the federal level. Your attorney can work with you while you are being detained in order to try and get the writ through, and eventually take steps towards bail release or other measures.

Being held in jail or having a loved one held in jail can be a difficult time. Don’t go into the courtroom alone. The legal process for criminal acts can be trying, confusing and altogether intimidating. Contact an attorney and learn what can be done for your case.