“Is a criminal appeal the only remedy available to a criminal defendant? What if the time for appeal passed? Is an attorney liable if they don’t make the right arguments in a criminal case or put on the correct evidence? How, if at all, could such a mistake be fixed?”

Dixon & Moseley, P.C. criminal appellate lawyers ply the waters that form the pool of answers to these complex questions on a regular basis, having briefed and argued criminal cases in the Indiana Court of Appeals and Indiana Supreme Court. The reason the answers are hard, and complex, is because a criminal defendant may lose his life or be incarcerated for a lengthy duration, so there are many avenues to challenge a conviction to protect the innocent.

In addition, criminal defendants are protected and better able to prepare for appeal because they have the constitutional right to trial counsel (unlike civil litigants). If they cannot afford counsel, a criminal lawyer will be appointed for them. Thus, a defense attorney can take prudent steps in the case, such as filing a motion to suppress certain evidence and develop a record at trial to better preserve issues for an appeal of the defendant if he/she is convicted. Alternately, a party to a civil litigation normally must proceed pro se if they cannot afford counsel or do not want counsel, all to the detriment of their case and appeal.

Published Opinion on Suppression of Illegally Seized Firearm

In addition, criminal defendants have other significant protections that assist at trial and on appeal. The first is the right to a jury trial. Depending upon the level of crime, a defendant may have 12 jurors who all must find him/her guilty, not just a single judge. The second is the fact the State must prove every element of their case beyond a reasonable doubt. This is a very high standard. These are the protections just at the trial court level.

Nevertheless, no system is infallible, and particularly with modern scientific methods (DNA testing in particular), many long-convicted criminals have been exonerated and released from prison with remedies other than appeal, although some remedies ultimately generate an appeal. For this reason, and even with modern forensics that prevent many people from being wrongfully accused or charged in the first place, a great number of other protections exists for criminal defendants that may be thought of under the umbrella term of an “appeal” of a conviction.

Memorandum Decision on Misdemeanor Intimidation

The first is the initial criminal appeal. Under the Indiana constitution, an appeal of right is allowed for a criminal defendant. In such an appeal, the defendant may challenge the conviction and/or the sentence. In addition, a defendant may obtain a reversal and a new trial by demonstrating ineffective assistance of trial defense counsel. This right does not exist in civil cases; the only remedy is to sue your civil attorney for professional malpractice, but this can only result in financial recovery which may not be sufficient relief if malpractice was committed.

The majority of criminal appeals proceed to the Indiana Court of Appeals. If the conviction or sentence is affirmed, the defendant may file a Petition to Transfer to the Indiana Supreme Court. Seeking transfer is important with serious crimes because federal habeas corpus requires the issues to have been presented to the highest state court. That said, the Supreme Court has mandatory and exclusive jurisdiction over criminal appeals in which a sentence of death or life imprisonment without parole was imposed and criminal appeals in post-conviction relief cases in which the sentence was death.

Published Opinion on Resisting Law Enforcement, Harassment, Public Intoxication, and Disorderly Conduct

Two rights that may be loosely thought of as criminal appeals are post-conviction relief and habeas corpus. These are extreme remedies, but nevertheless exist to give convicted defendants other chances at having their convictions set aside for errors or wrongful convictions. Due to the loss of freedom and being imprisoned, these serious tools are in existence to address mistakes. These remedies simply do not exist with a civil matters.

Published Opinion on the Admissibility of Blood Draw Evidence in Operating While Intoxicated Cases

Sample Appellant’s Brief Regarding the Admissibility of Blood Draw Evidence in Operating While Intoxicated Cases

Sample Appellant’s Reply Brief Regarding the Admissibility of Blood Draw Evidence in Operating While Intoxicated Cases

Where a criminal conviction is levied and sentencing conducted, the time begins to run for taking a criminal appeal. The defendant has 30 day from sentencing to file his or her appeal. Nevertheless, because loss of freedom and incarceration is the ultimate power of the state, a trial court may also allow defendant to file a belated appeal. However, the trial court does not have to allow a defendant to file a belated appeal. Urgency is the key and any Indiana criminal appeal lawyer and defendant must timely file a Notice of Appeal.

LINK TO ALL CRIMINAL APPEALS DECISIONS

Indiana Supreme Court Oral Argument on Revocation on Probation

Dixon & Moseley, P.C. criminal appellate attorneys may be counsel to consider. Research and consult with us and make an informed decision. Your life and/or freedom often hang in the balance. If you were convicted at trial and desire to take an appeal, maybe we are the right legal appellate counsel for you.