Practice Areas

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The appellate process contains the following four phases: 

·  Review: The first phase begins with a full review of the trial court proceedings in attempts of identifying legal errors. 

·  Research: The second phase consists of researching whether the law entitles you to relief. 

·  Briefing: The third phase involves our office drafting the Initial Brief to file with the appellate court. The State will then have an opportunity to file an Answer Brief. Lastly, we will have the option of filling a Reply Brief to the states Answer Brief. 

·  Decision: The fourth and final phase consists of waiting for the appellate court to decide your case. We have no control over how long this period lasts!

We tell our clients to expect the appeal to take at least a year. This is a realistic timeframe and sets realistic expectations. Sometimes, an appeal can take as little as six months. However, appellate courts can sometimes take six months just to decide after all the briefs have been filed. There is no deadline for how long judges have to decide and that is why the process can take longer for some clients and not others. 

Appellate proceedings operate differently than trial proceedings. An appeal does not require any court appearances because it is strictly a reading-writing-researching based practice. The only time that there is “court” would be if an oral argument is requested/ordered by the court. Further information on oral arguments will be discussed below. 

If the attorney was ineffective, that is not something that normally can be raised on direct appeal. The purpose of an appeal, is to allow a higher court to review the decisions made below - meaning, counsel would have had to put the court on notice and presented argument for review. However, the answer to this question is truly "it depends" - because although not standard to make an argument on appeal, it is possible.  We would  only argue a claim of ineffective assistance of counsel when the issue appears on the face of the record, which means the transcripts show trial counsel provided ineffective assistance. We will let you know if this occurred in your case. If not, we will strongly encourage you to raise any issues of ineffective assistance of counsel in a post-conviction motion. This motion can only be filed AFTER the appellate court issues their opinion in your case. 

In state court, in Florida, a Rule 3.850 motion is a motion that alleges ineffective counsel. In federal court, this type of motion is called a 2255 motion. Both motions challenge the constitutionality of a defendant's conviction because of ineffective counsel. Unlike an appeal, this type of motion attacks the conviction but can be based on anything within, or outside, the record. 

·  A post-conviction relief motion is often used to challenge a conviction or sentence based on the performance of an attorney. Having an attorney that is ineffective violates the constitutional protections of having effective assistance of counsel. Criminal defendants trust that their attorney is knowledgeable about how or why things happen in the criminal case. When they are not, and it falls below a constitutionally permissible level, you may seek relief. 

·  There are time restrictions when it comes to a 3.850 post-conviction motion. You have two years your Mandate Date if you filed a Direct Appeal. If you did not file a Direct Appeal, it would be two years from thirty days after your Sentencing date. Keep in mind, if you want to preserve your federal time, which means file anything in federal court in the future, you will need to file the 3.850 motion within one year. Making a case for an ineffective assistance of counsel claim is going to be fact intensive and varies wildly between different cases. 

A defendant only has one year, regardless of any other circumstances, to file a 2255 motion in federal court when they are challenging a federal conviction. 

·  The court has two options. They will either:

§  Claim that the motion is legally insufficient and deny the motion. If this is the result, then you can appeal the denial to the District Court of Appeals. You have thirty days from the denial date to submit a Notice of Appeal.

§  Direct the state to respond to the claims that were raised in the motion.

·  If the state is ordered to respond, the court has three options upon review of the state’s response: 

§  Grant the motion, or

§  Deny the motion, or

§  Schedule the motion for an evidentiary hearing. 

An evidentiary hearing is where the grounds granted in the motion are argued back in court in front of the judge, the state, the defendant, and the defendant’s lawyer. Typically, the judge does not rule the day of the evidentiary hearing. The ruling typically is revealed weeks or even months later.

§  Failure to preserve the right to appeal

§  Failure to assert affirmative defenses

§  Failure to advise the defendant of the consequences of a plea

§  Failure to investigate exculpatory evidence or favorable witnesses

§  Failure to file viable pretrial motions

§  Failure to convey a plea offer

§  Failure to move to strike a witness’s testimony when the witness refuses to be cross-examined

§  Failure to file a motion for new trial 

If you were found guilty at trial, the procedural timeline is to file a direct appeal first, followed by a post conviction motion. Our office would never suggest that someone waive their right to appeal - as it is also a constitutional right. A post conviction motion challenging an attorneys effectiveness always comes afterwards.