Legal Insights: Understanding Post Conviction and Appeals Process

Courtroom Insider: Attorney Mark Powers examines the post conviction appeals process.

You’ve just been convicted of a crime. Now what?

What many people fail to realize is that, in certain cases, they still have several options.

For instance, you can file a direct criminal appeal, seek a modification of your sentence, or pursue a number of other post-conviction remedies. The key is that you must act quickly because there are many time limits on filing a direct appeal or for pursuing other remedies.

A standard appeal is based upon a couple of different issues. One would be that you or your attorney had filed a motion to suppress, indicating you believed that you were stopped or arrested illegally or that your statement was obtained illegally and you lost this argument at the trial court level. Subsequently, you’re found guilty of the charge but you still believe this issue deserves another look and your attorney files an appeal with the Court of Appeals.

Another typical appeal that we see would be a case where the person convicted believes that he or she is aggrieved by the sentence and that there was some sort of manifest injustice that the judge utilized in sentencing that person. For instance, let’s say a prosecutor and the defense were both seeking probation in a case where a hefty prison sentence was possible and the judge maxed out that person on a prison sentence.  We might be able to make the argument that there was a manifest injustice or some type kind of abuse of discretion by the trial court. However, in my experience, these kinds of cases are few and far between as far as being worthy of appeal.

Many of the appeals we’ve seen of late and with more publicity include requests for new trials based upon new evidence that’s come to light or even re-sentencing based upon information that was not available at the time of sentencing.

What’s important to keep in mind for someone that’s been convicted, let’s say in a standard OWI criminal case.  The person who’s been sentenced might have lost a motion suggesting that the traffic stop was illegal.  Courts routinely advise defendants what their appeals rights are as it relates to those types of issues.

Defendants have 20 days from the day of their sentencing in which they can request an appeal.  This must be done in writing to the court, either by the defendant or the attorney, or that right is lost forever.

The important thing to remember through all of this is that appellate issues are limited in scope.  People need to realize that there are time limits for making a request for an appeal.  In certain cases, that window of time can be extended but it’s a good rule of thumb to use the 20 day time frame if you wish to make an appeal to the court system.

Bottom line?  If you’re contemplating making an appeal you need to discuss it thoroughly with a competent trial attorney or litigant who thinks that the facts, if viewed in a different light, might actually favor your position in contrast to what the judge ruled. In my experience, in the vast majority of criminal cases we see, these appeals happen in OWI cases because there is generally considerable discussion as to why the traffic stop was made and whether there truly was probably cause for arrest.

About Attorney Mark Powers
Attorney Mark Powers is a partner at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha. Previously, Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office and is currently serving as a municipal judge in North Prairie. He focuses in the area of criminal defense, and has handled many cases involving operating a motor vehicle while intoxicated, domestic disputes, and drug offenses.

Powers attended Valparaiso University School of Law, where he received his Juris Doctorate. Prior to law school, Mark attended the University of Wisconsin, Lacrosse where he received his bachelor of science in Political Science.

For more information, please call 262.549.5979 or visit  www.waukeshacriminalattorneys.com.

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