The Number of Criminal Appeals

Whether convicted of a misdemeanor DUI or a felony robbery, you will have at least one appeal available to you. This first appeal is known as an "appeal as of right."

In this appeal, you also have a right to the assistance of an attorney. If you can’t afford an appellate attorney, the court may appoint one. You can find a criminal defense lawyer with experience in complex appeals cases.

But when the first appeal doesn’t succeed, you may try again. Below, see how many times you can appeal a conviction and the steps for doing so. Keep in mind that the appeals process may vary from state to state and with the federal system.

How Appellate Courts Work

In a criminal case, the defendant can appeal the final judgment of the trial court to the next higher court. An appeal challenges the ruling of the trial court. The criminal defendant directs the appeal to the appellate court. They have the authority to review the trial court’s decision.

The volume of requests to overturn appellate court decisions is high. The state supreme court or highest appellate court can’t hear all such requests. They must assess whether the appellate court’s decision is consistent with the law. They may look at whether different appellate courts are in conflict over a legal issue raised in the case.

In states with large populations, you may find three or four levels of courts. In smaller states, there may only be three. There are important differences in the rules, time limits, costs, and procedures, depending on whether the case is in federal or state court. Each jurisdiction also has different rules. Finally, even within a single state, one may find that different rules for appeals depend on the court in which the case originated.

How Many Times Can I Appeal a Conviction?

The number of appeals for a criminal case varies by case. Every defendant can choose to seek a first appeal. But after the first appeal, the remaining options depend on a few factors. The specific details of the case can limit how many further appeals are available. Second or even third appeals for a conviction are rare.

Each level of appeal would require you to:

• Have valid legal grounds to appeal
• Identify the proper appellate court
• File your appeal before certain deadlines
• Complete all necessary court documents fully and accurately

Because appeal options are limited, getting the process right is vital. Your attorney can guide you through each appeal step.

First Appeals: The Right of Appeal

In every criminal case, the defendant has a right to a direct appeal of the verdict issued after a jury or bench trial. A defendant’s right of appeal is effective upon conviction.

A criminal conviction includes the verdict and sentencing. If the court sets sentencing to a later date, the defendant appeals after the sentencing date.

Filing a Notice of Appeal

The criminal appeals process includes several steps. It starts with filing the notice of appeal. The notice of appeal informs the trial court that you’re appealing your case. Your attorney sends the notice of appeal to the trial court as that court entered the judgment against you. The notice of appeal is a short document, usually no more than a page or two. The notice’s format may vary depending on whether your case is in federal or state court.

The notice clearly states the reasons for your appeal and the relief you seek from the court of appeals. For example, it may reference legal errors or other legal issues with the trial court decision. An appellate court can’t adjudicate a case if the notice isn’t properly filed in a timely manner. The notice must be filed within a definite time, such as 14 or 30 days. The period within which to file starts on the filing date of a final judgment in the lower court.

Appellate court rules will also provide a timeline for the defendant (now called the appellant) to file the court record from the lower court proceedings. The record includes the court docket, the trial transcript, and the exhibits.

Filing an Appellate Brief

The next step in the appeals process is filing your appellate brief with the court of appeals. The appellate brief will usually be a lengthy document written by your appeals attorney. It will state all the reasons why the lower court’s ruling was wrong. It will cite the trial transcript to show the appellate court where the alleged error occurred.

Both the appellant and the appellee (the government in a criminal appeal) will file briefs.

The Appellate Decision

The court of appeals may permit the attorneys for each side to present oral arguments after filing the briefs. A criminal appeal is different than a trial. Neither side calls witnesses. The appellate judges decide the appeal based on their review of the record and the arguments of counsel.

Judges often issue the appellate decision several weeks (or months) after submission of the briefs and oral argument. They can affirm or reverse the appellant’s conviction. They can also order a new trial or a new sentencing.

Appeals After a Guilty Plea

Sometimes, a defendant may seek to appeal a criminal conviction that resulted from a guilty plea. This usually occurs when the prosecutor and defense enter into a plea agreement.

At a plea hearing, the defendant waives their right to appeal. So, they would likely need court permission later to pursue an appeal of the plea and sentencing.

Secondary Appeals: A Discretionary Appeal to the Highest Court

Let’s say that you’ve lost your direct appeal. In other words, the appellate court affirmed your conviction.

You may be able to appeal the appellate court’s decision to the next higher court. This next step is usually an appeal to the highest court of a state (in a state case) or the U.S. Supreme Court (in a federal case). At this point, you no longer have a right to an appointed attorney, but you can still hire your own.

In many states and the federal system, these appeals are discretionary. This means the next higher court, or  "court of last resort," decides whether to grant further review of your case.

Filing an Appeal in a Higher Court

The appellant must file a notice of appeal and a brief or memorandum in support of jurisdiction. In this document, you must explain to the court why your case involves an issue of public or other important interest. For example, you may highlight any key constitutional question from your case.

The court will decide if it agrees with you and review the appellate court’s decision. The court denying your request does not act as a decision on the merits of your appeal. But the appellate court decision will remain the last word on your case if you take no further action.

Each state court system is unique. It makes sense to seek legal advice and hire an attorney in any appeal or action for post-conviction relief. Depending on where a case takes place, an indigent party may not have access to court-appointed counsel outside the initial appeal.

State procedures may also vary. In Texas courts, the highest appellate court for a criminal case is not the Texas Supreme Court. Texas employs a bifurcated appellate system. So, criminal cases move from the trial court level to the appellate court level and then to the Texas Court of Criminal Appeals. In contrast, juvenile and civil cases proceed from the trial court to the appellate court and then to the Texas Supreme Court.

Alternatives: Habeas Corpus and Other Post-Conviction Relief

Your right of appeal may not be the only option. State and federal law provide criminal defendants with other ways to challenge an unjust conviction or detention. For example, if a defendant has lost their first appeal, they may file a motion before the court that convicted them to vacate the prior judgment and grant a new trial.

Courts have a lot of discretion in deciding such motions. Successful motions often come from newly discovered evidence or proof of substantial procedural errors made in their case. In recent years, DNA evidence found at the scene but not tested in the original case may support a defendant’s claim of mistaken identity.

Filing a Habeas Corpus Petition

A habeas corpus petition seeks that a court issue an order requiring that the authorities holding an inmate bring them to court and show good cause for the inmate’s detention. In a federal habeas case, the inmate must show that they have exhausted all state remedies before filing in federal court.

The court may hold a hearing and review evidence. If the court concludes that new evidence exonerates the inmate or there were constitutional defects in their trial, it may release them.

Appeals in Capital Cases

Cases involving a capital crime, such as first-degree murder, may expose a criminal defendant to the death penalty.

Since the mid-1970s, states that permit a death sentence have set up procedural safeguards to prevent its arbitrary use. As a result, the appeals process in a capital case may not be the same as that in a non-capital case. For example, in Texas and other states, a defendant will file an appeal in a capital case directly with the highest appellate court in the state, bypassing the intermediate court of appeals.

Capital cases often become the subject of post-conviction relief outside the appeals process in light of the finality of a death sentence.

Get Legal Help With Your Criminal Appeal

While you’re entitled to appeal the judgment in your case, failing to do so in the right way can determine whether your appeal will actually be heard. Just how many times you can appeal a conviction depends on the details of your case.

Contact an experienced litigation and appeals lawyer near you to help guide you through the appeals process and help you file any necessary paperwork on your behalf.