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Although there are so many different ways that a criminal appeal may arise, most appeals fall into one of these categories. These have been simplified for purposes of this list, but do not be fooled. There is no substitute for experience when handling a criminal appeal. Often, the lawyer you choose will make the difference whether you win or lose, especially if the issues are not readily apparent. Mr. Forman has personally found numerous errors that were overlooked by defense counsel, the judge and even the prosecutor. Your appellate lawyer is the one who you will count on to find these errors!Here is a general list of the types of criminal appeals in Florida:
- Appeal of a sentence after a jury or non-jury trial, including all errors at trial
- Appeal of an order denying a motion for post-conviction relief under rule 3.850
- Appeal of an order denying a motion to correct an illegal sentence under rule 3.800
- Appeal of an order of a circuit court acting in its appellate capacity
- Appeal of an order denying a motion to withdraw or vacate a plea under rule 3.170
- Appeal of an order denying a dispositive motion to suppress or dismiss after entry of a plea
- Appeal of an order denying a motion for disqualification of an unfair judge
- Appeal of an order denying a motion to dismiss alleging a double jeopardy violation
- Appeal of an order denying a defendant’s motion to return property
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In addition to Chapter 924 of the Florida Statutes, Florida Criminal Appeals are governed by the Florida Rules of Appellate Procedure. These rules set forth the procedures that must be followed by all parties in the appellate court. These rules set forth the time periods when each type of brief is due, the format of each brief, the record on appeal, and all other aspects of an appeal. Fla. R. App. P. 9.140 expressly describes the type of appeals permitted by a defendant. Specifically, it allows a defendant to appeal:
(A) a final judgment adjudicating guilt;
(B) a final order withholding adjudication after a finding of guilt;
(C) an order granting probation or community control, or both, whether or not guilt has been adjudicated;
(D) orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.801, 3.850, 3.851, or 3.853;
(E) an unlawful or illegal sentence;
(F) a sentence, if the appeal is required or permitted by general law; or
(G) as otherwise provided by general law.
The last subsection is a catch-all which allows a defendant to appeal numerous other matters not expressly listed. An appeal filed by a defendant must be filed within 30 days. The State must file an appeal within 15 days.
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Many people want to file an appeal after entering a plea. Although there are legal procedures that can be taken, such as filing a motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l) or filing a motion for post-conviction relief under Fla.R.Cim.P 3.850, an appeal following a plea can only be taken in limited circumstances and only if the trial lawyer entered the plea properly. Specifically, under Florida Rule of Appellate Procedure 9.140(b)(2), a defendant may only appeal a guilty or no contest plea if the defendant expressly reserves the right to appeal a prior dispositive order of the lower tribunal and identifies with particularity the point of law being reserved. Additionally, a defendant can also challenge:
a. the lower tribunal’s lack of subject matter jurisdiction;
b. a violation of the plea agreement, if preserved by a motion to withdraw plea;
c. an involuntary plea, if preserved by a motion to withdraw plea;
d. a sentencing error, if preserved; or
e. as otherwise provided by law.
This list can be somewhat tricky because it makes it appear as if there are only a few instances when a defendant can file a criminal appeal. This is not true. These set forth the general parameters of a criminal appeal taken by a defendant, but it actually covers almost every instance that a defendant can encounter.
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Can I get a bond while I wait for my appeal? This is the first question that comes to mind after a person is sentenced. The simple answer is sometimes. When a person is arrested, Article I, Sec. 14 of the Florida Constitution guarantees the right to released on bail unless charged with a capital offense or an offense punishable by life imprisonment where the proof of guilt is evident or the presumption is great.However, after being convicted, the Florida Constitution does not give a defendant the right to be released while an appeal is pending. Instead, it is discretionary, subject to certain requirements that must be met. Florida Rule of Criminal Procedure 3.691 is the rule that governs post-trial bond or supersedeas bond.
A supersedeas or appeals bond is not available if the defendant has a prior felony conviction and his civil rights have not been restored. The good news is that a prior withholding of adjudication does not prohibit the issuance of a post-trial bond. Nor does a prior felony conviction that was obtained while the defendant had no lawyer. Only a counseled adjudication will prohibit a supersedeas bond. A defendant who has a pending felony while seeking an appeal bond will also not be granted post trial bond. However, not all offenses are eligible for a bond while the appeal is pending.
Although rule 3.691 only prohibits bail for capital offenses, Florida Statute 903.133 expressly prohibits post-trial bail for second degree murder, kidnapping, first degree felony arson, first degree felony delivery, sale or manufacture of drugs, drug trafficking, as well as sexual battery. All other offenses are eligible for a bond after trial.
In order to avoid an appeal by a defendant that is filed simply so that he can be released from jail, Fla. R. Crim. P. 3.691 requires that the defendant establish that “the appeal is taken in good faith, on grounds fairly debatable, and not frivolous.” This is a relatively low standard which merely requires that the issue involved be fairly debatable. It does not require a defendant to establish that he will win on appeal. Once this is shown, the court will apply the standards set forth in Younghans v. State, 90 So. 2d 308 (Fla. 1956).
The court will look to the severity of the sentence, the ties the defendant has to the community, the defendant’s habit of showing respect for the law, and other relevant factors. If the defendant’s motion for supersedeas bond is denied by the trial court, it can be appealed to the appellate court without waiting for the appeal of the trial to be concluded. Florida Rule of Appellate Procedure 9.140(h)(4) allows an appellant to challenge the denial of post trial bail by filing a motion in the appellate court.
If the trial court does grant post trial bail, or if the appellate court requires a bond, then the defendant is required to file a notice of appeal prior to the actual release of the defendant. Some judges wrongfully require a defendant to file his notice of appeal prior to hearing a motion for post trial appellate bond. However, Florida Rule of Appellate Procedure 9.140(h)(1) expressly allows the trial court to hear the motion for post trial bond before the notice of appeal is filed.
Although release is only allowed upon the filing of the notice of appeal, the motion can be heard anytime. If the State is the party who is filing the appeal, the court, in its discretion, may grant bail, regarding of the circumstances. In fact, rule 9.140(h)(2) requires that the defendant be released on the defendant’s own recognizance, unless the trial court finds good cause not to do so in a written order.