Strictly on the Record:

The Importance of Proper Preservation for Appeal in Criminal Cases

by Maribeth Wetzel, Esq.


Appeals are relatively common in criminal and civil cases.  In fact, they are filed almost immediately by the losing party after the verdict or judgment to preserve the client’s right to an appeal.  A party’s success on appeal, however, is an entirely different matter, particularly in criminal cases. 

In criminal appeals, the issues are narrowly construed and hinge on the trial attorney’s ability to properly preserve the issues for appeal.  This requires an ability to anticipate what issues will be appropriate for appeal, combined with a solid command of the rules of evidence.  In a sense, the trial attorney must perform a dexterous balancing act, advocating zealously for the client to win at trial while simultaneously setting the case up for appeal in the event of an unfavorable verdict. 

Proper Preservation Defined

Section 924.051(1)(b), Florida Statutes, defines “preserved” as “an issue, legal argument, or objection to evidence [that was] timely raised before, and ruled on by, the trial court, and . . . the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” 

The Florida Supreme Court has established three components for proper preservation of the record and ensuring that an argument will be “cognizable on appeal,” as set forth in Harrell v. State:

  • a timely, contemporaneous objection;
  • a stated legal ground for that objection;
  • the specific contention asserted as legal ground for the objection, exception, or motion must be the argument or issue presented on appeal.1

Ineffective Assistance and Other Consequences

One important aspect of properly preserving the record for appeal involves objecting to and properly preserving issues previously litigated as they arise at trial.  For example, a lawyer may do a wonderful job establishing the record during a pre-trial motion to suppress or a motion in limine, but such issues must also be readdressed during trial as the evidence is admitted.  Otherwise, the appellate lawyer may be precluded from raising those issues.  Moreover, not only must the objection be timely made, a legal basis must be stated at the time of the objection in order to properly preserve the issue.  If a general objection is made without a legal basis, it can be deemed insufficient by the appellate court. 

Failure to preserve the record for appeal may carry significant consequences for the defendant as well as the trial attorney.  For example, the Florida District Court of Appeal, Second District, has held that “failure to adequately preserve an issue for appellate review may constitute a facially sufficient claim of ineffective assistance of counsel.”2  Therefore, if the defense does not prevail at trial but cannot appeal because the trial attorney failed to preserve an issue, the defendant (usually through a new attorney) may file a post-conviction rule 3.850 motion alleging ineffective assistance of counsel.3  Such a claim is highly undesirable for criminal defense attorneys because, in addition to tarnishing their reputations, calling their competence into question, and potentially resulting in ethics violations, they are required to appear at the 3.850 hearing and explain why they did not preserve a particular issue for appeal.   

Err on the Side of Caution

Lawyers are often placed in a position where they must properly preserve the record, sometimes at the risk of alienating jurors due to constant objections.  At times, the “continuing objection” is used to balance these competing concerns, and in most cases, the appellate courts will accept the continuing objection, provided an adequate legal basis has been laid.  It is clear, however, that the courts prefer to have an objection each time the testimony is introduced.4  While objecting every time a hearsay statement is made can be cumbersome and may interrupt the flow of the trial, it may be necessary to protect the record.  Additionally, especially in hearsay situations, a different legal basis may be needed for each individual statement or piece of evidence. These situations may also arise where there are composite exhibits consisting of multiple photographs or other evidence.  In such cases, a lawyer cannot rely on a continuing objection and must make each objection separately, laying the legal basis each time the evidence is introduced. 

A trial attorney’s failure to properly preserve the record for appeal presents considerable consequences.  Therefore, with the ever-changing case law, it is better to err on the side of caution and object—on proper grounds—to each statement or piece of evidence as it is admitted at trial.  

Maribeth Wetzel, Esq., is an associate at The Fleming Law Group, P.A.  A former Assistant Public Defender in Pinellas County, Ms. Wetzel is a graduate of Michigan State University and the University of Toledo College of Law.  She is a member of the St. Petersburg Bar as well as the Pinellas Association of Criminal Defense Lawyers and the Florida and National Associations of Criminal Defense Lawyers. 


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1 894 So. 2d 935 (Fla. 2005) (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)).

2 Reid v. State, 777 So. 2d 431 (Fla. 2nd DCA 2000).

3 Fla. R. Crim. P. 3.850.

4 Elwell v. State, 954 So. 2d 104, (Fla. 2nd DCA 2007) review granted, 963 So. 2d 227 (Fla. 2007).


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