Beaverton Criminal Appeals Attorney

Just because you or your loved one has been convicted of a crime does not mean that you can no longer get help on the case. There are several options under the law that may help you reduce your sentence or even completely overturn your guilty conviction.

If the court made an error of any kind, you may be able to file an appeal which changes the result of your case. However, if an error did not affect substantial rights, the court will see it as harmless. Even if you are incarcerated, you can engage in inmate litigation. The court system will be required to accommodate you so that you can participate in your case as you need to.

When a Defendant files a direct appeal, he or she goes from being the “Defendant” to being the “appellant.” The State is now the Respondent. A direct appeal can only challenge the legal rulings made by the trial court, and may not bring in any new evidence. Both the State and the Defendant have the right to appeal, but the State is less likely to.

What is a Criminal Appeal?

A criminal appeal is a request to ask a higher court to look at the decisions made by a lower court. The appeals court is not allowed to consider any new evidence, such as other witnesses. Instead, the higher court can only look at the original court record.

The record includes everything that happened, including the witness testimony, the arguments by the attorneys, and any objections that were made on the record. It also includes the exhibits that were used, such as pictures or physical evidence.

What can you Appeal?

You can appeal several aspects of your conviction. You can appeal the conviction itself, if you were wrongly convicted. You can also appeal the sentence imposed by the court. If your sentence should have been suspended, you can argue that the court did not sentence you correctly. You can also argue extensions on probation, or modification of your sentence or probation which was made after the conviction. Read a blog post on how The Oregon Court reversed conviction.

If you do not state a reasonable basis for appeal, the court can dismiss it outright. They will say your petition is without merit, and the case will be over.

Burden of Proof

When you were in the trial court, the State was required to prove you guilty beyond a reasonable doubt. When you appeal, the burden shifts to you. In the appeals court, you are required to prove your case by a preponderance of the evidence. In other words, you have to prove just 51% that your side should win the case.

Winning an appeal is still very difficult. Courts need a good reason to rule against what another court has decided. The higher court must trust that those who were actually present during the trial are the ones who have the most knowledge of the circumstances.

Appeals Procedure

The case is started when you file a brief asking for relief on your case. The brief explains what you believe the errors were that the court made, and what relief you would like because of it. As you are held to the same standards as an attorney, it is better to seek the advice and help of a competent attorney before starting. If you make a mistake, this could keep you from ever being able to get relief on your case.

The other side, in this case being the State, is then allowed to file a rebuttal. The State will most likely deny that there were errors and ask that your sentence be upheld. You may be able to present another rebuttal, and the court may even allow oral arguments so that you can explain your case more clearly.

Appeals Timeline

  • Notice of appeal must be filed no more than 30 days after the judgment becomes part of the record.
  • A defendant cross-appealing must file within 10 days after the 30 day time limit has passed.
  • The Court of Appeals may only allow 90 days for the appeal to be fully briefed.
  • In some cases, in the interests of justice, 180 days is allowed for a more complex case.

Late Appeals

The court may grant these only if you can show that the delay was not cause by you and you do have a good claim to an error in the proceedings. Even then, you have to comply with a 90-day time limit.

Stay of Sentence

In some cases a court can order that your sentence is stayed while your appeal is pending. In those cases, you would not have to begin serving your jail time until the higher court has made its ruling.

In those cases, the court may take several factors into account. These include, but are not limited to, the severity of the offense, the health of the defendant, and the criminal history of the defendant. The court will also take into account factors like whether the defendant is likely to appeal in court again if the stay is granted.

What can Happen if you win your Appeal?

If you win your appeal, the higher court may refer you back to the trial court and ask for you to be granted an entirely new trial. In some cases, the court will only ask that your sentence be modified to fall within the legal range.

If you lose your appeal, the court will simply affirm that the trial court was correct.

Automatic Review of Death Sentences

Death penalty convictions have special rules. Any judgment followed by a death penalty sentence is subject to automatic and direct review by the Supreme Court. If the Supreme Court finds that the sentence was made with prejudice, the Court may set aside the death penalty sentence and send the case back to the trial court.

This does not overturn the conviction, and at this point the lower court may order the Defendant to be sentenced to life in the Department of Corrections or order a new jury to review the sentence. The jury may decide at that time to ask for the death sentence or a life sentence in the Department of Corrections.

The Supreme Court is allowed to look over the case and decide if there were any procedural or evidentiary errors, or even if the evidence was inadequate and the sentence given out of passion or anger.

Writ of Habeas Corpus

If you were convicted after entering a guilty plea, you cannot file a regular appeal. However, you may still be able to get relief on your case if you file a Writ of Habeas Corpus.

In order to prevail, you will need to prove to the Court that there were legal issues that you could not have known at the time of the plea. These are not often granted but may be a last chance to get relief.

How to get Help

Because of his attention to small details in every case, Beaverton Criminal Appeals Attorney Lemarr E. Carver is highly skilled at working with cases at the appeal level. He zealously advocates with the same energy in the appeals courts as he does when conducting trials.

Oregon Criminal Appeals Attorney Lemarr E. Carver enjoys helping those who have been wrongly convicted, whether because the court made an error or the original attorney wasn’t competent. He focuses much of his energy on appeals work because he knows that he can help innocent people who would otherwise be incarcerated for years and forgotten by friends, family and the system that put them there.

If you have been wrongly convicted and want to file an appeal, you can call The Law Offices of Lemarr E. Carver for Effective, High Quality Legal Representation. Lemarr Carver has handled thousands of criminal cases at the trial level throughout the state of Oregon and wants to help you if you were wrongly convicted.

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