Options After a Criminal Conviction
By: Kevin Chern
If you’ve been convicted of a crime, you have the legal right to challenge that conviction—and you may have multiple options available. People unfamiliar with the criminal justice system tend to refer to all of these options as appeals, but in fact an appeal is only one of several ways you may be able to challenge a criminal conviction or petition to have a conviction removed from your record.
Requests for Reconsideration and Motions for New Trials are often filed by the same criminal defense attorney who handled the trial, since they occur immediately following the trial. Sometimes these motions are entered before the parties and the attorneys leave the courtroom following the verdict. Generally, though, new lawyers are retained for appeals, habeas petitions, and other post-conviction efforts.
Get the facts. Talk to a local defense attorney to learn your rights before you’re convicted of any charges against you.
The very first effort a criminal defense attorney can make to fight a conviction is a motion to the trial court to reconsider its decision or to set aside the jury verdict. The specific terminology and process relating to this step differ from state to state, but in general there are strict time restrictions on such motions. In addition, motions for reconsideration are rarely successful, since such a motion essentially asks the trial court to change its mind almost immediately.
Motion for New Trial
Related to (and sometimes combined with) a request for reconsideration, a request for a new trial cites errors at the trial court level and requests that the conviction be vacated and a new trial granted. Again, these motions are rarely granted.
Generally, anyone convicted at trial has the right to at least one appeal. The right to counsel extends to this first appeal, so an indigent defendant can petition to be appointed an attorney for the first appeal. A defendant who enters a guilty plea, however, waives his right to appeal on the court record when his plea is entered. Although there are certain narrow circumstances under which a person who pleaded guilty may appeal his conviction, in most cases the right to appeal is cut off by a guilty plea.
Appeals address only “errors of law”. You can’t appeal a criminal conviction simply because you think the outcome was wrong. The Appellate Court does not reevaluate the evidence or hear new evidence—its decision is based solely on the trial court records. A successful appeal will point to something that went wrong in the trial process, such as evidence being admitted that should not have been. Appeals are also subject to fairly short filing periods and can be very expensive.
The appeals process can be extensive, with the possibility of requesting reconsideration or rehearing at the original Appellate Court level, then appealing further up to the state Supreme Court, and, in cases where federal Constitutional rights are at stake, even to the United States Supreme Court. Beyond the initial appeal, however, courts can generally decline to hear an appeal or simply make a ruling on the record affirming the lower court’s decision. The United States Supreme Court accepts only a fraction of appeals submitted to it.
Habeas Corpus Petitions
Habeas Corpus proceedings relate only to people who are in custody, usually in prison. The petition claims that a person is being held in violation of some law or Constitutional provision, and asks the court to order his release. Petitions may be filed in the state Appellate Court or in federal District Court, depending on the rights in question. Habeas petitions themselves may be appealed.
Often after a conviction is entered and the sentence has been served — or no jail time was ordered – there are still reasons it might be important to clean up the record. For instance, a criminal conviction may impact employment opportunities. Most states contain provisions allowing juvenile records to be sealed or expunged on motion, so long as certain requirements are met. The most significant of these requirements is usually that a certain time period has passed without additional criminal charges.
For those convicted as adults, clearing the record isn’t quite so simple, but criminal defense attorneys do get convictions vacated or expunged. The process varies from state to state—in some states only misdemeanor convictions can be expunged, and so a felony conviction must be first attacked in some other way, so that it might be re-entered as a misdemeanor in order to be eligible for expungement. Many states have minimum time periods that must elapse before a motion to expunge the record will be considered. Although a conviction has been expunged, you may still be required to disclose it under certain circumstances, such as when applying for work with the military or with a law enforcement agency. Your criminal defense lawyer will be able to tell you more about the impact of an expungement.
Deciding What to Do Next
With a wide variety of possible post-conviction options available and each having its own set of time restrictions and subject matter limitations, the best approach is to talk to a local criminal defense attorney about the option that best suits your case and your needs.