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Once More Unto the Breach: A Basic Understanding of Direct Criminal Appeals

I often hear from people recently convicted,

“I want to appeal. The State did me wrong. I went with so-and-so as my defense attorney, and they did nothing to defend me. And there was no evidence to convict me. You’ve got to help me.”

While this may or may not be true, the sad truth is this: if you were convicted at trial and were represented by an inexperienced or ignorant or unskilled or lazy trial attorney, then there is a very good chance that many of the appellate errors that potentially could reverse your case were not properly preserved and your appeal has little chance of prevailing from the get-go. People make mistakes, but in the criminal justice system, mistakes can cost someone the chance to go home.

Let me explain. An appeal is not a “do-over, “re-do,” or some second chance looked at over a video monitor (reviewing the matter for indisputable proof of blah, blah, blah). It is not a chance to press the reset button and start over. An appeal is not a “reweighing” of the evidence or a special request for a new trial because the convicted person was not satisfied with the outcome of the trial. Contrary to popular misunderstanding, that is not how it works, unfortunately.

An appeal is a legal review of the case. Did the trial court make any errors of law? The errors can be based on either the United States or Florida constitution, a statute, evidence, or case law. Were those errors properly preserved for appellate review? And if not, is the error a fundamental error that can be reviewed regardless of the preservation? Only special types of things get reviewed. And errors of fact … well that’s entirely up to the jury. If the jury decides a fact, then that fact is decided (even if the fact is objectively wrong) and that is usually not part of the appeal.

It is surprising to most people that the appellate court is not going to hear new evidence. This is not part of what constitutes a direct criminal appeal. In fact, there is no way for the appellate court to even know that a co-defendant is now saying he lied or a victim comes forward and admits she was not telling the truth. Those issues will not normally be heard on a direct criminal appeal.

The better the error preservation at the trial (and motion for new trial), then the better the odds are that the case may be reversed on appeal. Good defense attorneys survey the case from the start as they prepare for trial making note of any potential errors that might be ready and ripe for review. In those instances, the defense attorney prepares the case so that in the event of a conviction, the defendant might have a good chance on appeal of securing a reversal and new trial.

Sometimes the facts are just awful, but people make mistakes and errors occur (whether it is the judge, the prosecutor, the witnesses …etc). It is these errors that need to be reviewed. Again, the better the error preservation, the better the chance for some relief on appeal. Obviously, there are no guarantees that the case will be reversed, but nevertheless – the more errors that are preserved allows the appellate attorney to present more chances for reversal. Better error preservation may only bump the odds from a long shot at 50 to 1, to a less-long shot at 25 to 1, but it’s better – – but not that reassuring.

Appeals are tough. I cannot emphasize this enough. Most cases are affirmed on appeal (meaning that the conviction is affirmed) and the appellant denied any relief. As a general rule, appellate courts are looking to affirm convictions unless there is an error that requires reversing in their opinion. Unpreserved errors are usually not going to be enough (unless the error is fundamental) to win the appeal. The idea rests in the finality of convictions and the idea of fundamental fairness.

Our criminal justice system is not perfect. It is a modified adversarial system. Unfortunately, the law requires the defense attorney that is trying the case to make all the proper arguments and objections irrespective of winning or losing the case. In other words, the defense attorney has no choice but to be the best at making objections, raising issues, and preserving the record. Period. If they are not the best or not up to the task, the client will most definitely suffer the consequences. In most cases, failure to preserve an issue is fatal to appellate review (because this is an adversarial system) and the client loses out ultimately. While it is similar to the idea of malpractice involving a negligent doctor, plumber, or mechanic, the law treats this situation much differently (and in many cases absolves the negligent criminal defense attorney and instead hammers the client). Not fair, but I did not create the system.

  • It gets significantly more complicated than that, but that is the gist of it in a nutshell for the purposes of this blog.

Regarding criminal defense attorneys, beware – not all criminal defense attorneys (including assistant public defenders) are created alike. Make no mistake there are some fantastic attorneys out there, but like doctors, mechanics, musicians, carpenters, nurses, teachers …etc., some are better than others. As often is the case, the basics of being a criminal defense attorney entail being able to negotiate a plea deal. Again, some plea deals are better than others and are often driven by the facts of the case, the law, the victim, and the skill of the negotiators.

On the other hand, there is a much smaller group of criminal defense attorneys that can properly file and argue a motion to suppress in an attempt to suppress illegally obtained evidence. Motions to suppress are sometimes used as powerful leverage in negotiating a better plea agreement. Even smaller is the group of criminal defense attorneys that can competently try a case from jury selection to verdict regardless of the verdict. Trials are driven entirely by the facts. Even good criminal defense attorneys cannot usually overcome awful facts. Think of it this way – is a surgeon a bad doctor if they cannot save a person who has been decapitated (and reattach the person’s head)? The question scarcely escapes its own statement. No, but it depends entirely on the facts.

When it comes to criminal defense attorneys, the next smallest group is the attorney that knows how to effectively try a case before a jury, regardless of the outcome, and then properly preserves all issues for appeal. It is these attorneys that understand that sometimes the facts are awful, but that appellate errors if properly preserved will provide the client with potentially a second chance to prevail (or rethink whether a trial is a good idea (and opt for a plea deal)). This is the second tiniest group of attorneys across the state.

The tiniest group involves the attorney that can effectively try the case and preserve the issues for appeal, and then can file and prosecute the appeal as high as it needs to go. There are not a lot of attorneys in Florida that are equally as good at criminal appeals as they are trying criminal cases. These are the rare gems in Florida. Many trial attorneys have no interest in appeals and vice versa when it comes to appellate attorneys (that they have no interest in trying cases).

(I happen to think that type of pigeonholing is a huge mistake and believe that the best criminal defense attorneys are also powerful criminal appellate attorneys and vice versa. I wholeheartedly subscribe to the notion that you cannot be a good trial attorney unless you are a good appellate attorney and vice versa. Again, I am in the minority amongst my colleagues.)

After a conviction, the defendant does not really have a choice and must continue to fight in appeals and post-conviction matters. That is just how the system is designed. The system can be harsh in that respect, but if a defendant decides to wave the white flag and end his/her appeals/post-conviction claims then the conviction and sentence become final and permanent. It usually cannot be revisited at some later time. This is why sometimes you will see a person vindicated many years later because they fought all the way to that point (and had many courts deny them along the way).

Seriously, a good defense attorney (that handles appeals) may be the best chance someone has for gaining their freedom down the road.

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 or Anthony Candela at (813) 417-3645 to discuss your case.

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The purpose of this blog is purely education/information and should not be viewed as creating an attorney-client privilege between the reader and author.

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Image source: (Eilis Garvey)

No. 21-022 Once More Unto the Breach

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