Typically, the issue of filing an appeal comes up after you have been found guilty at trial. While there are other situations when an appeal might apply, I will focus on the post-trial appeal here. You will notice that throughout your trial, the judge will be asked to make certain rulings by both your attorney and by the prosecutor. Usually, the judge is requested to decide whether certain evidence is admissible or whether certain arguments can be made for one side or the other. The judge also will be asked to decide whether the jury should even get to decide the case. When the judge rules against the defendant during a criminal trial and the defendant is then convicted of anything by a jury, he or she has the right to appeal.
How Does the Appeal Work?
The appeal is made to a higher court consisting of three judges, none of whom will have been the judge that presided over your case. There are generally two questions that must be answered by the appellate court. First, did the trial court judge make any mistakes in his or her rulings. If the answer to that question is no, then the defendant will lose the appeal. If the answer is yes, the second question is “did it make a difference.”
Appellate courts call this the “harmless error doctrine.” The idea is that it doesn’t matter if the judge made a bad ruling if that ruling didn’t really affect the outcome of the case. However, if your appellate lawyer can convince the court that the judge made an error and that error impacted the outcome, you will win your appeal and receive a new trial. In some cases, the appellate court can dismiss your case outright, but the more common remedy is a new trial.
How Long Does an Appeal Take?
While your notice of appeal must be filed within 30 days of the date you are sentenced (and cannot be filed before you were sentenced), the process takes significantly longer. Appeals can take anywhere from 18 months to two years (or longer). If you are a first-time offender, you may be able to convince the judge to give you an appellate bond so that you can remain out of jail while the appeal is pending. If you have a record, however, you will wait for the appeal while you do your time.