Miami Criminal Appeals & Post-Conviction Attorney

An appeal from a criminal conviction or a post-conviction motion is often an individual’s hope to gain their freedom. Sometimes, it’s the difference between life and death. A criminal appeal is similar to a civil appeal in many procedural ways. But the main issues that come up in criminal appeals are pre-trial rulings by the trial judge that denied the Defendant a fair trial, errors in jury selection by the trial judge and errors in jury instructions by the trial judge. It’s critical that both an appellate lawyer has trial experience so they can easily identify those issues in the pre-trial hearing and trial transcripts to determine what went wrong. Judges are not infallible and they often make incorrect rulings. This is especially true on the trial level. Great trial lawyers make great appellate lawyers and vice-versa.

What is an Appeal?

An appeal is a judicial proceeding where a litigant or defendant can seek to reverse a ruling by a trial judge or a verdict entered by a jury. Almost always, appeals center on some decision made by the trial judge that denied the Defendant a fair trial or prejudiced the Defendant in such a way it was impossible for him to receive a fair trial. Rarely, the appellate courts will take a look at factual findings made by the trial court and render a ruling. After every conviction in a criminal case, the defendant has the right to an automatic direct appeal.

How do Appeals work?

The state court system is divided into four tiers on the state level. County Court is the people’s court. In criminal cases, County Court hears misdemeanors such as simple battery, petit theft and DUI, among others. A decision made by a County Court judge is appealed to a panel of Circuit Court judges chosen by the Chief Judge of the Circuit that the County Court is located. Circuit Court is the next tier in the court system. Circuit Court hears all manner of felonies from possession of cocaine up to first degree murder. A decision by a Circuit Court judge is appealed to the District Court of Appeal for that Circuit. There are 5 District Courts of Appeal in Florida. Decisions made by the District Court of Appeal are appealed to the Florida Supreme Court. The Florida Supreme Court can be appealed to the United States Supreme Court if the decision rendered by the lower court was a matter of federal law. For example, if the Florida Supreme Court were to incorrectly interpret the 4th amendment to the U.S. Constitution, then that issue can be taken up before the U.S. Supreme Court.

Brian Kirlew
Heidi Kirlew

In the federal court system, the appellate process works almost identical to the state court system. The trial court in the federal system is called the District Court. In the District Court, federal judges conduct trials or hear motions on constitutional issues such as improper search or illegally obtained confessions. Decisions made by District Court judges are appealed to the Circuit Court of Appeals. Each District Court is assigned to a circuit based upon its geographic location. In Florida, our circuit court of appeal is the Eleventh Circuit located in Atlanta. Decisions made by the Circuit Court of Appeals can be appealed to the U.S. Supreme Court.

What is a Post-Conviction Motion?

A post-conviction motion is a legal proceeding that allows for a person who has already been convicted and sentenced to seek a new trial. The hearings on these motions are heard in the same court, and often same judge, as where the trial occurred. Generally, there are two primary scenarios in which someone who has already been convicted and sentenced can file a post-conviction motion:

  1. Ineffective assistance of counsel, and
  2. Newly discovered evidence.

Ineffective assistant of counsel is often the remedy used to seek relief in a post-conviction hearing. The argument is that the trial lawyer was so derelict and ineffective in their duties, that the Defendant was denied a fair trial through no fault of their own. Hiring a quality trial attorney is the best way to avoid a wrongful conviction. But too often, bad lawyers get complicated cases and do a horrible job for their clients. That is where a quality Miami Post-Conviction Attorney can come in and right that wrong.

Newly discovered evidence is the second most common way to seek a new trial for a wrongfully convicted and sentenced Defendant. The standard is “the evidence could not have reasonably been discovered at the time of the trial through the exercise of due diligence”. You often see this in DNA exoneration cases where some piece of evidence that wasn’t tested proves the Defendant did not commit the crime. You also see it in circumstances of witness recantation, witness collusion or failure to identify and list exculpatory eye witnesses.

There is a two year limit on filing post-conviction motions. The clock starts to tick upon the final ruling by the appellate court (the mandate).

How do I file an Appeal or Post-Conviction Motion?

The first thing you want to do is consult with Brian Kirlew, Esq. to discuss your legal issues. Quality representation and proper evaluation of your cases is the only real way to know the viability of your appeal or post-conviction motion.

Contact our offices today to discuss your options.
305-521-0484