Appeals & Writs
Frequently asked questions
By The Law Offices of Amanda F. Benedict
162 S. Rancho Santa Fe Road, Ste F20
Encinitas, CA 92024
(760) 942-0054
amanda@amandabenedict.com
What Can I Do If I Am Wrongly Convicted, Or My Sentence Is Unfair?
In California, a person convicted of a felony offense has a Constitutional right to an appeal. Even if the defendant pled guilty, he or she may still file an appeal.
Can I Appeal From a Probation Violation?
Yes. In California, you can appeal from a probation violation.
When Should I file An Appeal?
There are strict time limits for filing a notice of appeal. Generally, once the time to file an appeal has passed, the Court will not permit a defendant to file a late notice of appeal. Because of the strict time limits, it is important to immediately consult with either your trial attorney or an appellate attorney to ensure that your notice of appeal is timely filed.
How is an Appeal different than a "Regular" Case?
An appeal is not a retrial of the case, but is an examination of the trial record to ensure that proceedings were conducted in a fair manner. No new discovery or "evidence" may be presented. Only the original court record can be considered during the appeals process. The Appellate Attorney will review the record from the Superior Court and submit a "brief" to the Court of Appeal and argue a point of law the attorney believes was incorrectly interpreted or applied by the lower court.
What Court Hears These Cases?
An appeal in California is typically presented to an appellate panel that is made up of three judges. The decision of the appeals court is based almost entirely upon the written briefs prepared and submitted by the appellate lawyer.
Do I have To Go To Court?
No. An appeal is based primarily on the briefs submitted by the attorneys. Witnesses are not called and there is no new evidence produced.
What Happens If I Lose My Appeal?
If the Court of Appeal "affirms" your conviction and/or sentence, it is possible to ask the California Supreme Court to review your case. If the California Supreme Court denies your review, or if they accept review but uphold the Court of Appeal's ruling, then it is possible to pursue relief through the federal courts by way of a petition for writ of habeas corpus. A petition to a federal court from a state court conviction must be premised upon "federal issues" - usually, violations of federal constitutional law.
What Happens If I Win My Appeal?
If you win your appeal, the Attorney General will have the option of appealing to a higher court. If the Attorney General does not seek review in the California State Supreme Court, the defendant will receive the relief requested in the briefing. Types of possible relief include: a dismissal of the entire case, a new trial, a new sentencing hearing, or a reduction of a prison sentence.
How Much Will My Appeal Cost?
The cost of an appellate defense lawyer can vary significantly depending upon the proceedings below. An appellate attorney will typically require a greater retainer for an appeal from a jury trial case than for an appeal from a guilty plea. The amount of a retainer will also typically increase with the number of days of proceedings. It is not unusual for retainers to start at $5,000 - $10,000. Retainer can be as high as $25,000 or more for appeals from lengthy, complex jury trials.
Why Do I Need An Appellate Lawyer - Can't My Trial Attorney Do The Appeal?
Appellate work is a specialty area of law that requires a unique set of skills including superior research and writing skills, and a thorough understanding of the rules and procedures surrounding the filing and arguing of an appeal. In addition to the separate skill set required of Appellate Attorneys, several court decisions have held there is an inherent conflict of interest when trial counsel in a criminal case also acts as counsel on appeal.
How Do I Find An Appellate Lawyer?
It is important that a defendant be represented by an attorney with appellate experience and the skills to properly present arguments to the Court of Appeal. Unfortunately, finding a good appellate attorney is not always easy. If your lawyer is promising you that your case is easy, or makes promises that you will be released from custody within a year, speak to other lawyers before signing a retainer agreement. Unfortunately, some lawyers misrepresent the complexity of a case or the possible outcome in order to entice the defendant (or a family member) to hire him or her. An appellate attorney should never make promises regarding the outcome.
Can You Handle Appeals Statewide?
The nature of an appellate law practice is that it is almost entirely office-based work. The essence of an appeal is the written briefs submitted to the appeals court. Generally, only 1 court appearance is required. Thus, picking the right attorney for your case is more important than picking your lawyer based on location.
Who Will Handle My Case If I Choose Your Law Firm?
At the Law Office of Amanda Benedict, I personally research and write every brief for every appeal I handle. I do not use paralegals to conduct research. It is for this reason that you can be assured that your case will be handled in the absolute best way possible. Additionally, I personally appear in court and conduct all oral arguments myself.
How Much Do You Charge?
Appeals are handled on either an hourly or flat fee basis depending on the type of case. A retainer will be required upfront, and will be deposited into a trust account on the client's behalf. Since all cases are different, please contact the office for most specific information.
CALL THE LAW OFFICE OF AMANDA BENEDICT FOR
YOUR FREE CONSULTATION
Law Offices of Amanda F. Benedict
162 S. Rancho Santa Fe Road, Ste F20
Encinitas, CA 92024
(760) 942-0054
amanda@amandabenedict.com
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