Madison criminal defense lawyer Robert T. Ruth is well-versed in all aspects of federal and state of Wisconsin criminal appeals, including post conviction motions, sentence modifications, direct appeal, petition for review or petition for certiorari and 974.06 or habeas corpus actions. If you stand convicted of a crime, let his experience in the court of appeals, along with his commitment to his clients, go to work for you.
"Criminal appeal" is a generic term used to describe several different postconviction (and sometimes pre-conviction) processes. In general, an appeal is a procedure for asking a higher court to review and change the decision of a lower court. Here is a run down of what a criminal appeal may entail.
An interlocutory appeal is an appeal to the court of appeals before a conviction or sentence. During a criminal case the judge may denying a defendant's motion for some sort of relief. In an interlocutory appeal, the defendant asks for the prosecution to stop temporarily while he petitions the court of appeals to change that particular ruling to the court of appeals. The first step for the court of appeals is to decide whether it is even willing to consider the issue before the case is final. If the court of appeals is willing to consider the issue, it grants the petition and then the parties argue whether the lower court's ruling is correct. If the court of appeals denies the petition, the case proceeds on in the lower court. Petitions for interlocutory appeal are generally disfavored and rarely granted. To get one granted a defendant typically needs to show significant irreparable harm by the continued prosecution. For example, if the challenge is to whether the prosecution is barred by double jeopardy.
The most common appeal is the direct appeal. In a direct appeal the defendant has been convicted and sentenced either after a guilty/no contest plea or after a trial. A direct appeal is a matter of right, not discretion. In other words, the court of appeals is not required to grant relief, but at the very least it must consider the case. A defendant files notice of appeal to the court of appeals. The parties then brief the issue in the court of appeals, starting with a brief by the party who appealed in the first place. This is followed by a response from the opposing side and a reply by the appealing side. The court of appeals may grant oral argument or may decide the case on the written arguments in the briefs. If the appealing side wins, the case is generally sent back to the lower court to correct the mistake. If the appealing side loses, it generally has the right to ask the Supreme Court to review the case.
Petition to the Supreme Court
A petition to the Supreme Court could either go to a state supreme court or to the United States Supreme Court, depending on the type and posture of the case.
Post Conviction Motions
Post conviction motions are motions filed in the trial court after conviction and sentence. They typically raise issues that cannot be raised by direct appeal because the record is insufficient. For example, a challenge to whether a defendant was deprived his right to effective assistance of counsel is generally raised by a post conviction motion. Such a challenge usually requires a hearing where the attorney is offered the opportunity to explain his actions or inaction in the case. If a post conviction motion is denied, the next step is to appeal to the court of appeals.
Habeas Corpus - 2254 - 2255 - Collateral Attack
Federal and state courts offer several procedures for challenging a person's incarceration outside of a direct appeal. These are often called collateral attacks and a writ of habeas corpus is one of them. Typically, a collateral attack requires that the person is in custody of a sentence and it involves a constitutional challenge.