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Difference Between Direct Appeal and Post-Conviction Appeals

Under our nation’s law, a defendant may request an appeal of a decision of guilt in a case at the conclusion of the trial. Unlike the initial trial, an appeal can be a lengthy and complex process, as it requires many procedural guidelines that are different than from the trial level. In order for an appeal to proceed, the petitioner must provide the appellate court with an error – or errors – committed by the lower court in rendering the verdict.

An appellate court has the discretion to grant an appeal. In other words, not every appeal is granted. There are several reasons why a reviewing court may grant an appeal including errors by the judge, flawed jury instructions, issues with the initial arrest, problems with evidence, inadmissible evidence allowed in trial, overlooked evidence that should have been presented in court, and a false or coerced confession elicited from the defendant. For these reasons, it is important to hire a dedicated Chicago criminal defense attorney to handle the appeal.

Direct Appeal

Under Illinois law, a defendant has 30 days to appeal a criminal conviction. The clock starts ticking the day after sentencing. If a plea was entered by the defendant, and it was fully negotiated (i.e. sentence or non-sentence agreed upon) then the date of sentencing is the same date on which the plea was entered. A defense attorney must file the appeal within this time frame to preserve the appeal, or it will be barred. Legal briefs are provided by the petitioner (the party requesting the appeal review) and the respondent (the party that prevailed at trial) to the appellate court.

Once the appellate court receives and reviews the parties’ legal briefs, it determines whether (1) errors of law were committed by the lower court and (2) if those errors rose to the level of “reversible error”. Reversible errors are grounds for review while harmless errors are not. Sometimes the court’s decision is made solely on the written legal briefs, while other times oral arguments are heard. The court will rule and may do one of the following: (1) affirm the lower court’s decision, (2) order a new trial, (3) modify the trial court’s ruling, (4) consider new facts or evidence, or (5) throw out the case entirely.

Post Conviction Appeal

Under Illinois law, criminal convictions may be challenged through a direct appeal (discussed above) or a post-conviction appeal. Illinois’ Post-Conviction Hearing Act allows a petitioner to seek other legal remedies, which may include a request for pardon, a habeas corpus writ for ineffective assistance of counsel, request a new trial, or correct sentencing errors.

State law imposes a time-limit during which a petitioner can request post-conviction relief. A petition must be filed on or before the earliest of the following:

  • 3 years after the date of conviction;
  • 45 days after the filing of a brief before the Illinois Supreme Court or the deadline for filing a petition, if one is not filed; or
  • 6 months after the denial of a petition for leave to appeal to the Illinois Supreme Court, or 6 months after the deadline for filing a petition, if one was not filed.

An applicant requesting post-conviction relief bears the burden of showing his or her federal or state constitutional rights were violated during the original trial. If a petitioner waited too long, or missed the applicable deadline described above, he or she may still seek post-conviction relief if it can be shown to the court that the delay was not caused by his or her own culpable negligence. Under current state law, a person can petition for post-conviction relief while a direct appeal is still pending, and often must do so in order not to missed the above deadlines.

Chicago Criminal Defense Attorney

A petitioner seeking a direct or post-conviction appeal bears the burden of showing an appellate court that the claim is not frivolous or without merit and one or more constitutional rights were violated at the trial level. Because this process can be extremely complicated, and the stakes high, it is important to retain an experienced Chicago criminal defense attorney to handle the appeal. Contact Goldman & Associates today for a free consultation on your direct appeal or post-conviction options.