I have been convicted of a crime and sentenced; what is the process for appeal and what can be appealed?
Generally, once there is a conviction and sentencing, you have two options in Indiana: you can accept the conviction and/or sentence, or you can appeal one or both (conviction and/or sentence). The time for which you have to appeal starts to run at the time of sentencing.
Stated differently, Indiana criminal appeals can question the propriety of the criminal conviction itself (did the prosecutor prove to the judge or jury beyond a reasonable doubt that you committed the elements of the crime?) or the sentence (did the judge sentence outside the plea bargain, outside of the guidelines, or abuse his or her sentencing discretion in some way?).
A criminal appeal is slightly different than a civil appeal in that, pursuant to criminal procedure and appellate rules, the sentencing hearing for a conviction usually occurs well after the guilty verdict. Thus, you may find yourself convicted of a crime, for which you want to appeal the conviction, but your sentencing hearing is scheduled in the future. This is common so the court can order and obtain a pre-sentence investigation to assist with sentencing.
Even if you are appealing the conviction, regardless of sentencing, the criminal conviction is not considered “final” for purposes of appeal until you have been sentenced. In other words, you cannot appeal your conviction until after you have been sentenced. Nevertheless, if your criminal trial counsel is not going to handle the appeal, then it is important to begin selection of an appellate attorney because there are strict time deadlines for all appeals.
Indiana criminal appeal lawyers can help you determine how and what you should appeal insofar as your conviction and/or sentencing, and determine the proper legal arguments and support. A criminal appeal may involve very narrow issues – from refusal to give a jury instruction to very broad challenges to the sufficiency of evidence based on a lone witness.
An Indiana criminal appeals lawyer will be able to review the transcripts, evidence, charging documents, and underlying investigation into your charges to determine whether the trial court applied the correct law and procedure to your case. An Indiana criminal appeals attorney will also be able to determine any fatal flaws in the trial court case, write an appellate brief, and present your argument as to why the conviction should be overturned and/or why you are entitled to a new trial.
Simple errors, known as harmless errors, are generally not the basis for reversal. Trials themselves are dynamic and always involve errors. The issue is whether an error deprived a criminal defendant of a fair trial.
Again, it is important to note that Indiana law requires that you file a Notice of Appeal within 30 days of your conviction and sentencing hearing. A failure to timely file an appeal means that you forfeit your right to challenge your conviction by way of an appeal; however, you may still seek relief pursuant to the post-conviction rule permitting a belated notice of appeal (Cornelius Cooper v. State of Indiana, 2009). In rare cases, late appeals are accepted in criminal cases because of the potential loss of freedom and civil rights.
If you, or your trial court attorney, think that you were wrongfully convicted or sentenced, you should seek appeal counsel as soon as possible. An Indiana criminal appeal lawyer can help you determine the merits of your appeal, and walk you through the steps in the appeal process. The Attorney General does the briefing for the State on criminal appeals.
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