Appeals & Post-Conviction Relief

As you may know, the appellate process can be a long and complicated ordeal. The direct appeal following your judgment and sentence is crucial, as it may be the only opportunity to have legal issues reviewed by a higher court. In reviewing your entire case, an appellate attorney will analyze the record to determine the existence of appealable issues, such as whether your constitutional rights were violated, or whether the trial court made erroneous rulings. It is the appellate attorney's responsibility to review the entire record of your trial, conduct legal research, and to prepare written arguments. In certain cases, the appellate attorney may conduct oral argument, wherein the attorney must have the ability to present a persuasive and succinct argument to the appellate court.

In addition to reviewing your case for direct appeal issues, the appellate attorney may analyze your case for possible post-conviction remedies. In the State of Florida, post-conviction motions are generally filed under Criminal Rule of Procedure 3.800, and 3.850. If a defendant challenges the legality of his or her sentence, the attorney may file a 3.800 motion within the trial court. Rule 3.850 encompasses motions alleging ineffective assistance of counsel. These issues can be complicated both legally and factually, and they may benefit from the assistance of experienced counsel. The following is an overview of the appeals and post-conviction process. Please contact our office to learn more about your options and to schedule a free initial consultation.

What is an Appeal?

If you have ever experienced the criminal justice system, you have probably heard at least one Judge say the following: "You have thirty days from the date of this judgment and sentence to appeal."

Many people hear these words and immediately think that if they are not satisfied with the sentence, an appeal can be filed, and another judge can simply change the result. Unfortunately, this is a common misunderstanding of the appellate process.

Appeal proceedings in criminal cases are set forth in Appellate Rule of Procedure 9.140. In general terms, an appellate court's sole function is to determine whether a trial court committed legal error.

Examples of Trial Court Error

Trial Court error" does not mean, "the Judge was too harsh on me; I wanted probation, and I was sentenced to prison."

Trial Court error literally means that the Judge did something during the pre-trial stages of your case, trial or sentencing, which constituted a violation of the law.

Some examples of trial court error may be the following:

  • You filed a motion to suppress, motion to dismiss, or motion in limine, and the Judge denied your motion when the law required that he or she grant your motion.
  • You requested a motion to continue your trial, and the Judge denied your motion.
  • You objected to certain evidence being admitted during your trial, but the Judge admitted them contrary to Florida law.
  • The Judge permitted your case to go to a jury verdict, even though the State failed to present sufficient evidence to do so.
  • The Judge provided incorrect or incomplete jury instructions.
  • Your sentence exceeds the statutory maximum for your offense, or you were sentenced as an Habitual Offender or Prison Release Re-Offender when the law did not provide for such.

The above list constitutes just a few of the possible issues that can be argued on appeal. Of course, each case is different, and there are rather specific rules related to whether you are in a position to appeal a particular issue.

Examples of Issues that do NOT generally constitute Trial Court Error

  • You wanted to be placed on probation, but the Judge refused and sentenced you to prison.
  • You want to request a reduced or modified sentence.

Although there are general rules of thumb regarding what is appealable, and what is not appealable, it is impossible for us to determine whether you have appealable issues without, at a minimum, consulting with you.

Do you want an Appeal?

Not everyone wants or needs an appeal. Of course, that decision must be made by you, and it is certainly advised that you should obtain the advice of counsel prior to making such important decision.

Sentence reduction

In some cases, the person's intention may be to request that the Trial Court reduce or modify his or her sentence. If you believe that the Trial Court lacked certain information before sentencing you, or you believe that you have additional information that should have been presented, you may file a motion in the Trial Court asking for your sentence to be reduced or modified. There are strict time requirements for making such request. The Trial Court retains jurisdiction for such purposes for sixty days following your original judgment and sentence; thus, any motion must be filed within sixty days from your sentencing. Generally, an order denying a motion for reconsideration is not appealable.

Motion to Withdraw Plea

In other cases, the person's intention may be to withdraw his or her plea. If there is legal cause, (such as an involuntary plea), you may file a motion asking the Trial Court to withdraw your plea. The motion must be filed within thirty days of your sentence, and if the Court denies your motion, you may be able to appeal such.

Can you Appeal?

In general terms, a defendant may appeal a final judgment and sentence. Appellate Rules of Procedure 9.140 sets forth the specific criteria for permissible appeals. A defendant may appeal a final judgment adjudicating guilt, a final order withholding adjudication after a finding of guilt, an order granting probation or community control, whether or not guilt has been adjudicated, orders entered after final judgment or finding of guilt, including orders revoking or modifying probation, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850 or 3.853, or an illegal sentence.

If you pled guilty or nolo contendere, you may still appeal a final judgment and sentence if you specifically reserved the right to appeal during your plea colloquy. For example, if your trial counsel filed a motion to dismiss the motion was denied, and you then pled guilty, so long as you reserved your right to appeal that dispositive motion to dismiss, you may appeal that ruling. A defendant that pleads guilty may also appeal the judgment and sentence if the trial court lacked jurisdiction to enter the sentence, a violation of the plea agreement (if preserved by a motion to withdraw plea), an involuntary plea (if preserved by a motion to withdraw plea), or a sentencing error (if preserved).

You have decided to Appeal... Now what?

Appellate Process: TIME IS OF THE ESSENCE!

The entire appellate process involves highly specific rules and procedures that must be followed in a timely fashion. If you fail to follow the rules of procedure, you may be barred from appealing your case.

After you are sentenced, you have thirty days to file a Notice of Appeal with the trial court. Within approximately sixty days after the Notice of Appeal is filed, the Clerk of Courts prepares the Record of your entire case. The Record includes all official pleadings, transcripts of your trial and sentencing.

Appellate Record: What is so important about the Record? The only matters that can be appealed are those that are identified within the record. If the Record does not contain important documents or transcripts related to your case, we can ask the Clerk to supplement your record; however, the Appellate Court will not consider any matter on appeal that is not within the Record.

Initial Brief: After the Record is complete, the Appellate Attorney reads the entire Record, analyzes your case for legal issues, conducts legal research and drafts the Initial Brief. There are strict deadlines regarding the time for filing briefs; however, if the Appellate Attorney requires additional time to analyze your issues, he/she may request such from the Court.

Answer Brief: The Attorney General receives your initial brief, and generally files an Answer Brief outlining its position on the issues raised in the initial brief. If the Attorney General does not file a cross-appeal, the Answer Brief must be limited to issues raised in the initial brief.

Reply Brief: After the Answer Brief is received, you have one more opportunity to reply to Court. The Reply Brief must not include any new issues, and must be limited to matters argued by the Attorney General in its Answer Brief.

Oral Argument: Oral argument is the opportunity to present the arguments before the Appellate Court, and respond to the Court's concerns. Either party may request oral argument.

Everything is complete... What's next?

After the briefs are filed and any argument completed, the entire Record and all filings are given to the three Judge panel. There are no deadlines for the Court to issue its ruling, and until it does issue the ruling, there is quite simply a lot of "sitting and waiting." The Court must have time to fully analyze your case and the issues presented. In practice, rulings are generally issued within a couple of months to nearly one year, and possibly beyond…

You must have patience throughout the process, as generally once the briefs are completed, the work is out of the attorney's hands.

Am I entitled to a Bond pending Appeal?

The short answer is - it depends. Florida law permits bond pending appeal, however, there are statutory exclusions for bond and other considerations that must be discussed prior to filing a motion for bond.

Court Ruling

The Second District Court of Appeals generally issues opinions every Wednesday and Friday. Of course its procedures are subject to change. Anyone can access the opinions on under the heading "OPINIONS."

The Dreaded "PCA"

The Court does not always issue written opinions. In fact, the Court issues more "PCAs" than written opinions. A "PCA" literally means "Per Curiam Affirmed" - in layman terms, it means the appeal denied. If you receive a "PCA" in some cases you may still seek relief from the Court. For example, if the Court overlooked issues of fact or law or if the issues presented are of great importance, you can file a motion for rehearing, a motion for rehearing en banc (heard by the entire Court), a motion for certification of an important issue, or a motion requesting a written opinion. These motions should not be abused and should only be filed in instances where the Attorney believes there is just cause. Motions for rehearings are not filed to re-argue the same issues on appeal. If the Court denies any final relief, a PCA may mean the end of your direct appeal.


Written opinions may be issued to reverse or affirm a trial court's order. Either side may file a motion for rehearing; thus, regardless which party initially prevails, a motion for rehearing may be filed, and your case will not be final until the Court rules on the motion.

When does the Court's ruling become final?

The Court's ruling will not become final until it issues a Mandate. Either party may ask for a rehearing within 15 days from the issuance of the Court's initial ruling. The mandate will be issued after the time allowed for rehearing, or after the Court rules upon a motion for rehearing.

Obtaining Florida Supreme Court Jurisdiction

The District Courts of Appeal are, in many cases, the last line of attack. However, in certain circumstances a party may seek Florida Supreme Court jurisdiction to review a district court opinion. Florida Rules of Appellate Procedure 9.030 sets forth the jurisdiction of the Florida Supreme Court. Simply because a party is dissatisfied with a particular ruling does not entitle them to Supreme Court review. There are two separate categories for the Court's jurisdiction - mandatory jurisdiction and discretionary jurisdiction. In criminal matters, the Supreme Court must review sentences imposing death, and decisions of district courts declaring a state statute invalid. In most cases, parties seek to invoke the Court's discretionary jurisdiction. In general, discretionary jurisdiction may be sought to review decisions of district courts that (1) expressly declare a state statute valid; (2) expressly construe a provision of the state or federal constitution; (3) expressly effect a class of constitutional or state officers; (4) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (5) pass upon a question certified to be of great public importance; (6) are certified to be in direct conflict with decisions of other district courts. However, as the word "discretionary" suggests, even if the Supreme Court can grant discretionary review, it does not have to grant the review.

The Appeal is over... Now what?

If you prevail, what happens next depends entirely upon the specific relief offered. If the Court remands your case it could be for a variety of procedures including a new trial, a new sentencing hearing, or it could be for the Trial Court to enter an Order dismissing your case.

If you did not succeed, you may still have post conviction remedies. Within two years from the date of the mandate, you may file a motion for post conviction relief. The Post Conviction Process can be as complicated, if not more complicated, than the appellate process. If you are interested in having your case reviewed for such relief, contact our office at (727) 323-4020 and we will schedule a consultation.

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Any information obtained from this website should not be taken as legal advice. Contacting Fleming Law Group through this website does not create an attorney-client relationship. Please do not send us any personal or confidential information by e-mail until you receive written confirmation from a member of this firm that an attorney-client relationship has been established. At no time should you act upon the basis of any matter or information contained within this site without first seeking professional counsel.

Copyright 2005 Fleming Law Group

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