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Orlando Criminal Defense Lawyer

Appeals

THE RIGHT TO JUDICIAL REVIEW

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.