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Criminal Appeals

Unfortunately during the course of criminal litigation mistakes are made. These mistake can often result in a miscarriage of justice. However  you usually have the right to file an appeal with a higher court asking to remedy this mistake. Some attorneys refer to this process as “Judicial Review.” There are usually two types of error that can occur in the trial court to be reviewed on appeal. First is preserved error, and the second is plain/fundamental error

Preserved error occurs when the trial attorney raises the issue at the trial level, and assuming the judge rules against him he makes a record of the issue to be appealed. A record is made if the trial attorney states enough facts on the record (even though the jury might not hear or see it) that the appellate court can review what happened at the trial level. A failure to raise the issue or make a sufficient record after the trial judge rules against him, then the issue is generally waived on appeal. The exception to this is if the error results in fundamental error.

Error that is plain/fundamental error is an exception to the rule that an objection must be made at trial in order for the issue to be reviewed on appeal. It is not enough that a mistake was made, but it must effect the validity of the trial itself. Some courts have ruled that it is not plain/fundamental error in a criminal case unless the prosecution could not have obtained the conviction without the unobjected to evidence.


Sometimes a direct appeal is not enough to grant the defendant a fair review of his case. In these situations a defendant will often seek to file an extraordinary writ seeking relief. A lot of these writs are interlocutory appeals, which is an exception to the rule that an order must be final before it can be appealed. These appeals are allowed to occur interlocutory because there is no other remedy that would grant the defendant adequate relief. For example if the judge orders a defendant to tell the prosecutor the password to his phone, even if the defendant were to win on direct appeal it would be too late, because the prosecutor has already seen the contents on the defendant’s phone. In these situations the defendant may be able to appeal the judges order via  a writ to prevent the prosecutor from having access to the defendant’s phone.


After a defendant has been convicted (or had adjudication withheld) he can file a motion for post conviction relief. Besides a direct appeal, most convictions will have to be challenged in the trial court with a motion for post conviction relief. These motions include:

  • Ineffective Assistance of Counsel
  • Motion for New Trial
  • Motion to Correct Sentence
  • Motion to Withdraw Plea

One of the main reasons that these motions can usually not be raised on direct appeal is because the court needs to take in evidence to evaluate the merit of the claim. Appellate courts generally just review what happened in the lower court, while the lower court is usually the one that takes in evidence. So unless the remedy is apparent, then a motion will have to be filed so the issue can be ruled on the merits. That ruling will then be appealable to the appellate courts for review.