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Can I Appeal My Jail Sentence?

Posted on January 14, 2017 in General Criminal Law Issues - Northern KY

If you took the case to trial and were convicted, there is nearly guaranteed a right to appeal.  The Notice of Appeal must be filed within 30 days of the conviction.  What follows is a series of legal steps, including: designation of evidence, clerk’s certification of record and evidence, briefing schedule set forth by the appellate court, brief of the appellant/defendant, brief of the appellee/prosecution and then the potential for counter arguments and oral arguments to the court of appeals.

If you plead or have pled guilty, there is little chance that you can appeal the conviction or the resulting sentence; regardless of whether the sentence includes incarceration, jail, probation or fines.

If you were convicted in District Court, the local Circuit Court acts as the appellate court and will rule on issues.  You do not get to retry the case.  Often I receive phone calls from convicted persons who think that they can retry the case and present new evidence to the court of appeals.  In a very limited setting, new evidence may be presented.  This must be “newly discovered evidence” that was unavailable at the time of the trial.  the court draws a hard line in this regard.  Simply because your trial attorney did not present evidence, chose to ignore or not present evidence, or could not find or timely subpoena a witness does NOT give you the right to present it on appeal or get a new trial. Civil Rule 59.02 and 60.02 outline the specifics of newly discovered evidence.  

Generally, the appellate court only reviews the evidence that was presented.  In general, the groudns for appeal is regarding legal rulings on issues before the court. If you filed a Motion to Suppress which was denied, you can ask the court to review that ruling.  The trial court will not substitute their decision over that of the jury.  They are looking at LEGAL ISSUES in addition to potential prosecutorial misconduct.  (That is generally when a prosecutor fails to disclose evidence to the defense or presents arguments of facts which were not put into evidence.)

Appeals are not cheap and often legal fees exceed those of the trial attorney.  Additionally, if you WIN on appeal the case may be dismissed OR may be reversed and remanded for a new trial.  You will need an attorney for the retrial of the case as well.

If you have been convicted, speak to your attorney or public advocate about rights on appeal. Make sure that any appeal is filed timely.  If you want a second opinion, contact a criminal defense attorney.  To discuss, call Michael Bouldin at 581-581-6453 or email at mwbouldin2@gmail.com.