Even after being convicted of a criminal offense, an individual still does have the chance to pursue post-conviction relief so as to avoid the maximum penalties associated with his or her charge. The decision to appeal the case is taken after one has completed the initial phase where he or she has been sentenced after going through trial and convicted or pleaded guilty. If one fails from the appeal, he or she still has the last option which is the post-conviction relief. The action of post-conviction is usually pursued in the cases of a motion for a new trial or a writ of habeas corpus (The Scott Law Firm, LLC, 2018). However, for the appeals to be successful, there are specific requirements that have to be met.
Request for a New Trial: Upon being convicted in trial court, a defendant can request for a new trial with the court with which his or her case was tried. The court can guarantee the motion for new trial only if the defendant can show: perjury; jury misconduct; judicial error; prosecutorial misconduct; or ineffective counsel at trial. The motion for new trial has to be made seven days after the judgment had been entered unless there is a discovery of new evidence. The development of the new evidence allows the new trial to be filed as long as within two years after the verdict (PLLC 2018). A confidant can also make a post-trial motion to withdraw a guilty plea or nolo contendere or guilty but mentally ill but only before the sentence is imposed or if the sentencing is suspended. However, a confidant is not entitled to court-appointed counsel to file the guilt withdrawal motion under this law.
Writ of Habeas Corpus: Generally, post-conviction relief comes after all the other appeals been denied other than the motion for a new trial. The motions are usually heard by the same judge who heard the trial case thus such cases are not usually granted. However, losing the appeals is not the end of the road for the convict as he or she still has one year to file a writ of habeas corpus in a different court, says a district court. The writ of habeas corpus can also be filed within one year of the date the right to appeal expired in a case that the convict had failed to file for any kind of appeal earlier. The court has the power to extend the time in circumstances that a cause is shown (PLLC 2018). A writ of habeas corpus essentially claims that a convict is being held unlawfully thus allows for the inclusion of new evidence that was not raised on the trail when filed. The motion allows the defendant to challenge the conviction and imprisonment by identifying and raising possible errors that occurred during the trial (PLLC 2018). In most states, for one to be able to file a writ of habeas corpus, he or she must have been incarcerated and has no other way to challenge the conviction.
Before a lawyer determines which post-conviction relief option to pursue, he or she must first review and understand all the rights to appeal are available for the defendant after his or her conviction. As mentioned earlier, a convicted criminal can decide to apply for post-conviction relief for two reasons, a motion for new trial or a writ of habeas corpus. Each of the goals has their specific requirements that a lawyer would need to review first, before deciding which option to pursue. For instance, if the lawyer reviews the previous court case that sentenced the defendant and finds and can confirm cases of perjury, jury misconduct, judicial error, prosecutorial misconduct, and ineffective counsel at trial, the lawyer would then file a motion for a new trial if the case is still within 7 days after judgement entered (PLLC 2018). Also, if the sentencing is yet to be imposed or has been suspended, the lawyer can review if the defendant qualifies for a motion to withdraw a guilty plea, or nolo contendere or guilty but mentally ill. The lawyer must also review to confirm that indeed the motion can be permitted as a post-trial motion. Upon review, if the lawyer finds out that all appeals have been denied, he or she can then review if the convict is still within the period allowed for the filing of a writ of habeas corpus. If the review reveals that the convict never applied for filed for an appeal, and is still within the one year allowed before the appeal expires, the lawyer would pursue a motion for writ of habeas corpus.
The post-trial procedures are essential to the defendant in that it directs the defendant into pursuing post-conviction relief option that is within his or her rights and one that is allowable by the court of law. Before a defendant can decide to apply for a post-conviction motion, he or she must understand all the legal requirements that must be fulfilled before the appeal is accepted or rejected. For this reason, therefore, the defendant, maybe through his or her lawyer, must have a clear understanding of the procedure before deciding to file any motion of appeal.
PLLC (2018). Las Vegas Attorney for Criminal Appeals - Gersten Law Firm. [online]
Thegerstenlawfirm.com. Available at: https://www.thegerstenlawfirm.com/legal-services/criminal-defense/appeals-post-conviction-relief/ [Accessed 11 Apr. 2018].
The Scott Law Firm, LLC. (2018). Post-Conviction Relief | Criminal Defense Lawyer in
Louisiana. [online] Available at: http://www.pwscottlaw.com/criminal-defense/post-conviction-relief/ [Accessed 11 Apr. 2018].
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