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Appeals

Appealing a criminal conviction can be a complex process. Once a conviction is entered, the clock is ticking on meeting important deadlines for filing a notice of appeal or raising certain arguments. Depending on the type of case in which the conviction was rendered and where a case is located in the appeals process, there are multiple types of appeals that can be sought, including direct appeal in state court, state post-conviction appeals, federal post-conviction or habeas appeals, and state habeas appeals. All of these are distinct in the types of arguments and issues that may be raised and may depend greatly on whether an issue was voiced during the trial or in an earlier appeal. Those seeking to appeal their criminal conviction need an experienced attorney to navigate the appeals process and make sure that their rights are protected.

Under § 115 of the Kentucky Constitution, at least one appeal to another court is a matter of right in all cases. The Kentucky Rules of Criminal Procedure (RCr) and Civil Procedure (CR) supply most of the rules that must be followed during the process of appealing a conviction. All appeals are heard by the next highest court after a notice of appeal is filed in the trial court. This means that a misdemeanor conviction in district court will be appealed to circuit court. A felony conviction received in circuit court will be appealed to the Kentucky Court of Appeals. The exception to this rule are cases with a judgment imposing a sentence of death, life imprisonment, or imprisonment for 20 years or more. These cases are appealed directly to the Supreme Court of Kentucky.

DEADLINES

There are a number of deadlines to be aware of when starting an appeal. A motion for new trial must be filed within five days after the verdict is returned, unless new evidence is discovered. A notice of appeal must be filed within 30 days after the judgment is received. However, if a motion for a new trial has been filed, the 30-day clock does not begin until the date that motion is denied. A motion to vacate, set aside, or correct the sentence under RCr 11.42 must be filed within three years of when the conviction became final.

ISSUES

The appeals process also places several limitations on what issues may be raised. A motion for new trial or any part of the direct appeal process can only raise issues from the trial record. Once this process is exhausted, the defendant moves to the state post-conviction stage. A new record can be established if a motion to vacate under RCr 11.42 is filed. The most common issue raised under these motions is ineffective assistance of counsel. If efforts to appeal on these grounds are not successful, federal constitutional issues can be argued during the federal post-conviction stage. Once this process has been completed, courts are unlikely to hear other appeals unless new evidence arises.

STANDARD

Generally, findings of fact made at the trial level are not set aside in appeals unless they are “clearly erroneous.” Conclusions of law, such as a court's application of a particular statute or jury instruction errors, are reviewed de novo. This means that they are reviewed without giving weight to the trial court's decision on the matter.

EXAMPLES

The attorneys at Baldani, Rowland & Richardson have considerable experience with filing and successfully arguing appeals at the state and federal level in both civil and criminal matters. Examples include:

  • Appeals from state district court to circuit court (such as appeals of DUI convictions);
  • Appeals from conditional guilty pleas;
  • Appeals and motions for discretionary review to both the Kentucky Court of Appeals and Kentucky Supreme Court;
  • Appeals of federal bond decisions;
  • Appeals to the Sixth Circuit Court of Appeals;
  • Petitions for Certiorari to the United States Supreme Court;
  • Various other post-conviction remedies, such as 11.42 claims (ineffective assistance of counsel) and habeas corpus petitions

If you or a loved one is seeking an appeal from a criminal conviction, don't let important rights slip by. For a consultation, contact us at (859) 259-0727.

Proven Results

Established in 1988, Baldani, Rowland & Richardson has successfully represented thousands of individuals across the Commonwealth of Kentucky. With over 100 years of combined experience, let our team of attorneys fight for your rights.

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