Going Nowhere. Failure to Preserve Appellate Issues is Not Ok

A direct criminal appeal is often seen by the public as the last stand in terms of a criminal conviction. Contrary to popular belief, a defendant may not appeal the issue of his/her guilt or innocence unless the matter proceeds to trial and the defendant is convicted.[i] Yes, that is correct; you are not reading that wrong. The issue of guilt or innocence is entirely for a trial (and not for a plea).

On the other hand, a direct criminal appeal is completely useless without the trial attorney making doubly sure that any appellate issues were properly preserved for the appeal or beyond. In this sense, what you don’t know can hurt you, badly. And you must have lost and been convicted (otherwise, an appeal has no purpose).

The rule for the umpteenth time is this “except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.”[ii] In other words, the attorney must make the proper objection on all relevant grounds, make the objection timely, and get a clear ruling from the trial court. Failure to make the proper objection may be “ineffective assistance of counsel,” but that is usually a long shot at best.

To further clarify, the Florida Supreme Court explained that “… in order for an argument to be cognizable on appeal, it must be the specific contention asserted as a legal ground for the objection, exception, or motion below.”[iii] If the error, argument, or objection is not brought to the trial court’s attention, then how did the trial court know it made an error? The burden is on the defense attorney to get off his/her butt and make the objection.

Over the history of the courts, the appellate court have progressively made it harder and harder for objectively aggrieved appellants to prevail on direct appeals as this rule has been crystalized against the appellant. By design, the appellate courts have placed a near impossible burden on defense attorneys to make all proper objections and argument at the trial court. Miss the objection or argument, then the attorney has blown the issue (and there are no “do-overs” or a really fast DeLorean that can go back in time so that the issue can be fixed).

And in some instances, the law even places further burdens on the defense attorney to make further motions for mistrial, to strike, or requests for curative instructions to properly preserve the error. Yes, not only does the defense attorney have to make the proper objection but must remember when he/she gets a positive ruling from the court sustaining the objection to further “press their luck” with further motions for mistrial …etc. to properly preserve the error. In some instances, the process is a two-step and in others it is the one-step (and the trial attorney is required to know). It goes without saying that this de jure practice is designed to protect criminal convictions (and the government’s policing power).[iv]

Over my past twenty years, I have read tons of appellate records in terms of prosecuting direct appeals. Often, I am frustrated and upset by what I am seeing in terms of the defense lawyering (because it is awful and professionally indefensible). I can tell you that without a doubt there is nothing more disheartening, defeating, or discouraging then to find that most, if not all of the objections, errors, or arguments were simply missed and/or not properly preserved and/or abandoned because of the trial attorney’s ignorance, inexperience, sloth, sloppiness, carelessness, clumsiness, cluelessness, laziness, arrogance, or general stupidity. Take your pick, but it is enough to make you scream.[v]

Under these circumstances, the appeal has little chance of success because the issues were not properly preserved. Even more sadistic is that the direct appeal must be prosecuted (and resources wasted on losing arguments) because the issues must be raised to properly preserve the issues for presentation down the road in further state post-conviction and federal habeas corpus proceedings under the “exhaustion doctrine.”

Yes, you are reading that correctly. You have to appeal (knowing that it will lose and waste time, money, and treasure) to properly preserve an appellate error for possible review several years later. And make no mistake or have any misunderstanding, the errors must be acknowledged and raised (even if the matter will lose) to properly preserve the issues down the road.

I cannot stress this enough the choice of criminal defense attorney is immensely important. Like the AT&T commercials “just ok is not ok” campaign,[vi] just having an “ok” defense attorney is not ok and can cost you more than your freedom. It is a double whammy because it can cost you your freedom and your chance at freedom later on. There are only a few things that you can control once charged with a crime and the choice of attorney is one of them. In fact, it is the most important decision you might ever make in this regard. Get the best attorney that you can afford. This is a decision that you will never regret.[vii]

If you or a loved one is currently facing criminal charges, then make sure that the attorney explains everything to you in such a way that you understand the difficult decisions you may be making as you make your way through the criminal justice system. And if you are not getting the answers you can understand, then contact another attorney.

Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog


THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, criminal appeal (either state or federal) or estate planning, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

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No. 21-017 Nowhere

[i] While there is the possibility of appealing a legally dispositive motion (concerning an evidentiary issue) that type of appeal does not deal with issues of innocence or guilt.

[ii] Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982).

[iii] Ibid.

[iv]  Keep in mind that the Bill of Rights and the Fourteenth Amendment are not self-executing and require the defense attorney to make the contemporaneous objection and/or argument and/or point out the error and then demand that the trial court make a clear ruling. Further, the Sixth Amendment mandates that the defense attorney provide “effective assistance of counsel.”

[v]  Keep in mind, there is no motion for new facts or any way to reconfigure the appeal. If the issues are missed and/or not preserved, the defendant/appellant bears the brunt of the mistake and professional negligence. I am an attorney and not a magician. I cannot fix what was not correctly set up for appeal.

[vi] https://www.youtube.com/watch?v=RFElTWAr–Y

[vii] https://ihearyoubarking.com/2021/02/12/choose-wisely/

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