Basics of a Federal Criminal Appeal

The federal criminal appellate process begins when a person is convicted at the district court. A conviction can occur after a jury trial or after a plea of guilty.

If a person has entered in to a plea agreement, the person may have agreed to waive many of their rights to appeal.

If a person had a jury trial, there can be some issues that can be argued on appeal. The first thing that occurs after judgement/conviction, is the attorney must file a “notice of appeal” which usually must be filed within ten days following the district court’s entry of judgment. If the government is appealing the district court’s decision, a timely notice of appeal may be filed within thirty days following entry of judgment.

On a really basic level, there are two types of errors to address on appeal. Pursuant to Federal Rules of Criminal Procedure 52, there is:

(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

An error affecting a defendant’s substantial rights is one that affects the outcome of the proceedings. The effect of the plain error rule is the defendant must have properly raised the issue in the district court first.

After filing the Notice of Appeal, the appellant must order transcripts of the proceedings. The defendant, now referred to as the “appellant,” must file an “appellant’s brief.” A brief is a written legal argument which conveys the case to the court. On the average, it takes several months for a case to move from sentencing, filing of the Notice of Appeal to the filing of the appellant’s brief. This is because the request of transcripts of all of the applicable hearings takes some time.

Once the defense files its initial appellant’s brief, the government then responds to the appellant’s brief by filing an “appellee’s” brief approximately thirty days after defense files their brief. The appellee’s brief is an answer to the challenge made by the defendant. The defendant may, within fourteen days thereafter, file an “appellant’s reply brief” before the Court of Appeals considers the case.

In most cases, following briefing, oral arguments can be scheduled before a panel of three judges. The defendant will not be present if he or she is in prison. Most cases, however, are argued via briefs only.

It takes several months or more for the Court of Appeals to make a decision. Ultimately, the appellate court’s final decision will either agree or disagree with the lower court, or agree/disagree in parts.

You can see here for all opinions for the 11th Circuit Court of Appeals.