Appeals In this court dissents have gradually become majority opinions. — Supreme Court Justice Felix Frankfurter in Graves v. New York, 360 US 466, 1939

KEY WORDS Key terms to understand for this chapter… Boykin Advisement Curative instructions Impaneled jury Manifest necessity Mistrial New trial Verdict

OBJECTIVES After completing this chapter, you should be able to… List the grounds that a defendant can use on appeal to obtain a new trial. Explain the process for the pronouncement of judgment and the arrest of judgment. Discuss the issues regarding the release of a defendant during an appeal. Explain the methods of appeal. List those situations in which the prosecution may appeal.

Appeals By the Defendant The defendant must file a “notice of appeal.” The defendant’s appeal may be well founded, since some error may have been committed, or the defendant may appeal merely to delay serving the sentence. (Out on bail pending appeal.) A defendant has no inherent right to remain free once convicted, as presumption of innocence is lost.

Appeals By the Defendant If the conviction is affirmed or the defendant retried after reversal, credit will be given for time incarcerated. If the conviction is reversed & the defendant not retried, little can be done to compensate for the time in prison. other than to clear the name of the accused Not all appeals are made immediately after a conviction. Not all efforts by a defendant to appeal a conviction to an appellate court are successful. sufficient grounds must be alleged in order for the appellate court to hear the appeal

Appeals Method of Appeal Upon appeal, the defendant, through counsel or on his/her own, will submit a brief to the appellate court that sets forth the alleged error committed. with citations of appellate court decisions upholding the contended error, and transcript of the trial proceedings The prosecution will submit a brief to show why the conviction should be affirmed and not reversed. The appellate court will review the briefs & transcript. it may conclude there is no ground for appeal, and deny a hearing on the matter. if the court feels the appeal worthy, a hearing date will be set.

Appeals Method of Appeal At the hearing/phone conference, the defense attorney and prosecution’s representative will be present to argue their sides. (The defendant is usually not present, since he/she has no inherent right to be present at an appeal hearing.) The appellate court will determine if conviction should be affirmed or reversed. If the appellate court denies a hearing on the appeal, there is little the defendant can do about the decision. (If a defendant proves one of the constitutional rights were violated, the defendant may appeal to U. S. Supreme Court)

Appeals Retrial After Reversal The U.S. Supreme Court may grant a hearing in an effort to determine whether there was a violation. if there was, the Supreme Court will reverse the conviction. If the Court denies the hearing or affirms conviction, no further appeal can be taken by the defendant. If a conviction is reversed, the defendant may be retried.

Appeals Retrial After Reversal If reversal is based on a law that is unconstitutional, that jeopardy had attached, or a law is too vague to indicate the violation, there cannot be a retrial. If the reversal is based on introduction of illegally seized evidence or an improperly obtained confession, in many states the defendant may be retried. and the improperly introduced evidence will not be admissible during the retrial. The prosecuting attorney has to determine whether the other evidence was sufficient in obtaining a conviction if not, the charge will undoubtedly be dismissed.

Appeals Retrial After Reversal If a defendant gets a conviction reversed on appeal, is retried & convicted, may the judge impose an increased sentence after the new trial? The Supreme Court in North Carolina v. Pearce, held that if identifiable misconduct by the defendant took place after the first trial, the judge might impose an increased sentence but the increase should not be based on the fact that the defendant has appealed his/her case

Appeals Retrial After Reversal The Court stated : “Due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” “…due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” “…to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear (in the record).”

Appeals By the Prosecution States vary concerning prosecution right of appeal. a few deny the prosecution any right to appeal, since it would result in a violation of the guarantee against double jeopardy some permit a limited right when the appeal does not involve the double jeopardy guarantee Generally, an appeal may be taken on a judge’s order setting aside or dismissing an accusatory pleading. An appeal may also be taken on a grant of a new trial, an arrest of judgment, or a modification of a verdict or punishment imposed.

Appeals By the Prosecution In most states, the prosecution has no right to appeal a case when an acquittal verdict has been rendered. as stated in Washington v. Arizona, acquittal is final regardless of how erroneously it may have been arrived at a few states do allow an appeal by the prosecution after a verdict of acquittal has been returned The appeal is followed when the prosecution alleges that a serious error was made by the judge on a ruling of law or procedure. Permitted so guidelines may be established for future cases. An appellate court has no authority to reverse the acquittal.

Appeals By the Prosecution An increasing number of states allow the prosecution to appeal a judge’s order suppressing evidence. generally held that appeal may be taken only on an order suppressing evidence that was made before the trial began and may not be taken during the trial Some states do not permit an appeal of an order suppressing evidence made even before the trial. These courts hold that the prosecution is no more disadvantaged by an erroneous ruling before the trial than one during the trial when such ruling leads to an acquittal

Appeals Guilty Plea - Boykin Advisement It is paradoxical to permit a defendant to appeal a conviction resulting from a voluntary plea of guilty but some states do permit a defendant to appeal a guilty plea based on some alleged constitutional, jurisdictional, or other grounds concerning the legality of the proceedings A defendant may allege the judge failed to explain significance of the guilty plea as required by Boykin v. Alabama. When the trial judge advises a defendant as to his/her rights before accepting a guilty plea, the advisement is considered as the “Boykin advisement.”

Appellate Court Citations Judges of appellate courts are generally referred to as “justices,” and their numbers vary from one state to another, as well as one appellate court to another. Some states have only a single appellate court. generally referred to as the supreme court Other states have a bilateral appellate court system. in which there is an appellate court and a supreme court Usually three justices will compose an appellate court, the supreme court varies, usually from five to nine justices A majority of justices must agree on a decision.

Appellate Court Citations Recording Court Decisions Once the decision is made, one of the majority justices will put the decision in writing, stating whether the conviction was upheld or reverse and the reasoning. A dissenting justice may decide to write a dissenting opinion, setting forth reasons for disagreement. Decisions by appellate courts are recorded in official publications to act as guidelines for future cases. Each decision is given a citation number in order that the decision may be filed, indexed, and located by those having occasion to refer to a particular decision.

Appellate Court Citations Example Citation A typical example of an appellate court citation: State v. Tison, 142 Ariz. 446 (1999). State v. Tison is the title of the decision 142 refers to the volume number of the official record Ariz. is an abbreviation for the state of Arizona, indicating that the decision is that of the Arizona Supreme Court 446 is the page number where the decision begins 1999 is the date or year in which the decision was handed down by the Arizona Supreme Court

Appellate Court Citations In addition to official publications, decisions are included in publications of private companies. In order that a particular decision may be more readily located by a judge or an attorney, both the official citation and the citation of private companies are included when a case decision is referred to. West Publishing Company in St. Paul, Minnesota, publishes the decisions of the supreme courts of the various states Decisions are reported by geographic areas, in a system known as the National Reporter System.

Appellate Court Citations Private Publication Example Returning to State v. Tison, 142 Ariz. 446, there may be the additional citation of 690 P.2d 747 (1999). P. indicates the decision can be located in the Pacific Reporter of the National Reporter System 2d indicates the second series of the Pacific Reporter volumes If a decision is handed down by the US Supreme Court the following is an example of the official citation that would be used: Batson v. Kentucky, 476 US 79 (1986). Published by West Publishing Company in the Supreme Court Reporter, abbreviated as S.Ct., the Batson decision would be cited as 106 S.Ct. 1712.

Appellate Court Citations Private Publication Example The Lawyers Cooperative Publishing Company also publishes the US Supreme Court decisions in a publication known as the Supreme Court Reporter Lawyer’s Edition, abbreviated as L.Ed. the Batson decision may be cited as 90 L.Ed.2d 69 Or a decision may carry all three citations as follows: Batson v. Kentucky, 476 US 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In states with an appellate court below the supreme court, decisions of these appellate courts are also published in an official publication.

Important topics for this chapter… (cont.) SUMMARY Important topics for this chapter… The pronouncement of judgment is normally considered the oral sentencing of the defendant by the judge in open court, but technically it also includes the written judgment of the judge. The defendant may appeal his or her conviction or sentence or both. The prosecution has only limited rights of appeal.

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