Sunday, February 5, 2023


 I recently appeared before the Fourth District Court of Appeal in a very novel case involving issues of a criminal prosecution under Florida's Sunshine Law that have not been addressed in decades. The client had a lot of questions like would she be able to testify, and would witnesses be called to address the court? I realized that most people do not really know what an appeal is. 

THIS IS NOT WHAT AN APPEAL IS NOT:  a new trial. Witnesses will not testify, and new evidence cannot be presented.  An appeal in a criminal case is also usually not whether a defendant is innocent or guilty. That is a concept many people have trouble understanding. 

THE MOST IMPORTANT POINT IS THIS: Appellate law states that trial courts and juries are in the best position to evaluate witnesses and make decisions on guilt or innocence. Absent an error that affects the ability of a judge or jury to make a fair decision, an appellate court will not reverse a criminal conviction. Therefore, appeals are about mistakes the trial judge made, whether those mistakes affected the verdict, and rarely about guilt or innocence of the client.  

WHY OBJECTIONS MATTER A LOT: Because whether or not the lawyer objected affects the standard of review the appellate court applies to the issues on appeal. This can be the difference between winning and losing the appeal. 

STANDARDS OF REVIEW matter more than almost anything else on appeal. Think of it this way- in school you are assigned a book to read. You can read the book, or you can buy one of those summaries that tell you the plot. When a lawyer objects to a decision and the appellate lawyer argues that issue on appeal, the issue is considered preserved because the lawyer objected. When an error is preserved, it's like the appellate court will read the whole book and look at the issue closely. When an error is not preserved because the lawyer did not object, it's like the appellate court will only review the summary. They will not look at the error closely, and unless the error is fundamental error, meaning that error absolutely affected the verdict, then the court will not reverse the conviction. More criminal cases are lost on appeal because the trial lawyer did not object and preserve the error than any other reason. 

HARMLESS ERROR: No trial is perfect or error free. The mistake (error) has to be one that affected the fairness of the trial. Therefore, when writing the brief, I will make sure that the errors I argue on appeal are serious to the point where I can tell the court that the error affected the outcome and deprived my client of a fair trial. 

BRIEFS:  An appeal is done in writing with a brief based on the transcript of the trial and all of the documents, motions and evidence at trial (called the Record On Appeal). I create a brief by reading the trial transcript multiple times. I also have a least one other lawyer who works with me read the transcript. We identify possible errors and then do research to see which errors the court of appeal we are before has previously recognized as fatal to a case. We also read the decisions of other appellate courts that have confronted the same issue. Then we write the brief, raising the errors called points on appeal, and citing to the other decisions that support our argument. 

    It is possible but rare that we identify a case where even if everything the prosecution alleged did occur, it still does not constitute a crime. In those rare cases we ask the appellate court to reverse the conviction and discharge our client, meaning the case is dismissed without a new trial. In all other cases, a win on appeal means either a new trial or a new sentence. 

We write the initial brief. The Prosecution writes the answer brief. We get the last word with a reply brief. During the time period of the reply brief we also ask for oral argument, which is something the court has the discretion to approve or it can choose to decide the case just on the briefs. 

ORAL ARGUMENT:  In oral argument I will appear before a panel of three judges who have been randomly assigned the appeal. I only need to convince two of them that I am right. I will start a presentation and within a few moments I will usually be interrupted by a judge who will ask me a question either about my argument or the prosecution's argument. From that point forward it is usually a back and forth of questions by the judges and answers by me about why my client did not receive a fair trial. The bad news is that the court usually gives each side ten or fifteen minutes for their argument. That is almost never enough time to cover all the issues in the appeal. 

OPINION: The appellate court will issue the decision in writing, called an opinion. There is no time period for how long they can take, but it's usually within two to three months after oral argument. There are three judges, and it takes the vote of two judges to win the appeal.  

WHAT HAPPENS AFTER AN APPEAL? When a defendant is convicted at trial, they have an automatic right to appeal. After that appeal, to either a district court of appeal in Florida state courts, or the circuit court of appeal in federal appeals, either party may request that the supreme court review the case. The appeal to the US Supreme Court or state Supreme Court is not automatic. A lawyer has to file a brief requesting the Supreme Court accept the appeal. Those cases are very rare. In these appeals, the best chance for the state Supreme Court or US Supreme Court to agree to hear the case is if the lawyer can show that decisions of other courts of appeal, confronting the same issue, have decided it the other way. This is called a split in the appellate courts, and the Supreme Court will sometimes accept the case to resolve the dispute and to give courts guidance on how to handle the issue in the future. Either side who loses an appeal can request the Supreme Court to hear the appeal. 

WHAT CAN A DEFENDANT DO IF THEY LOSE THEIR APPEAL? There is one more procedure for a defendant in state or federal court to employ if they lose their appeal. It is called a motion for post-conviction relief, usually based on a claim of ineffective assistance of counsel, but not always. Sometimes the motion can be based on newly discovered evidence. I will write a blog post about these types of motions shortly. 


In victory, magnanimity.                                                                                                                  In defeat, defiance. 

Winston Churchill, Prime Minister of England during WWII. 


 I recently appeared before the Fourth District Court of Appeal in a very novel case involving issues of a criminal prosecution under Florid...