Can you please explain to me how to file an appeal, what are the steps, what needs to be included, is it diff then filing a motion for a new trial, do they go hand and hand, what is the time allowed to file, 30 days from what, the date they were found guitly /conviction, or sentencing date.(has not been sen yet) The notice of appeal, is that diff then the actual appeal ? How long does a defendant have to file between the two ? He had a court appointed attrny, however for the appeal he will either get a PD from the appeals court or do it pro se.
What issues can and should be raised, also can you explain to me- if issues are not raised during the appeal they are considered waived and can never be addressed, can you clarify all issues that should be rasied so we don't leave anything out ?
Criminal Defense Attorney
If you qualified for the public defender at trial, you should qualify for appointment of the appellate defender. Do not go it alone. You have 30 days to file a motion for new trial from the date on which the finding of guilty was entered. You may raise any error that you contend occurred at trial or on pre-trial motions. The PD who handled the trial should be the one filing this motion. Assuming that motion is denied and sentence is imposed, you have 30 days from the date of sentencing to file the Notice of Appeal. Any issue not raised in the motion for a new trial is waived for purposes of appeal, unless the appellate court finds "plain error" which is highly unusual. The Notice of Appeal is filed in the trial court (and within 7 days of that, in the appellate court); the latter will set a schedule for filing of the common law record and a briefing schedule upon receipt of the Notice. Again, do not go it alone. www.galivanlaw.net
First, please don't try to handle a criminal appeal pro se. It is a terrible idea. The world of appellate practice is not at all intuitive and requires the ability to develop fine legal distinctions on questions where reasonable lawyers and judges can disagree. Not only is this no job for a non-attorney, it is often best entrusted to an appellate specialist.
If you had the public defender in the trial court you are presumably eligible for appointment of counsel on appeal, and the judge will appoint the Appellate Defender. Your case will probably be assigned to the Appellate Defender's office in Ottawa. If you prefer, you can talk to private attorneys about representing you on a retained basis. If you start with the Appellate Defender and then find private counsel, it will be easy to arrange for a substitution.
In order to take an appeal in Illinois, you must file a Notice of Appeal within thirty days of the imposition of sentence. The notice of appeal is a very short document filed with the clerk of the trial court that formally states your desire to appeal. Once that document is filed, your case will be transferred to the appellate court where the actual appeal will be litigated.
Your trial attorney should normally file a post-trial motion after conviction, which the trial judge will rule upon before sentencing proceedings begin. This motion must recite every ground on which you might want to take an appeal, and any claim not noted in the post-trial motion will be much harder to raise on appeal and might be foreclosed completely. But that is a task for your public defender, who should know how to prepare such a motion and who should have kept proper notes for the purpose.
It is also the trial attorneys duty to file a timely notice of appeal, but you must tell you lawyer that you want to appeal in order for that to be done. If you know that you want to appeal, or are uncertain, then tell your lawyer to file the notice of appeal. You can change your mind later and withdraw the appeal if you want to, but it is very difficult, and sometimes impossible, to file a late notice of appeal if you miss the deadline and then change you mind. So if in doubt, file the notice.
The appeal itself is mostly a matter of written submissions prepared by your attorney and by the prosecutor which discuss and argue the legal issues involved in your trial. The three-judge court relies on the record of the trial and on the written case books, called briefs, prepared by the attorneys. It hears no witnesses and considers no new evidence. There is usually a single, short, argument before the court at which the attorneys argue their positions and are closely questioned by the judges about the legal validity and implications of their arguments. The decision is in writing and usually follows oral argument by a few weeks or a few months.
The whole process is slow and even on a simple criminal case can take a year or more.
Once again, I implore you, either retain a good appellate attorney or go with the Appellate Defender if money is a problem, but don't try to do this yourself.
Criminal Defense Attorney
When a defendant is sentenced, the judge gives an explanation of the appeal rights. If a defendant does not understand he should ask his attorney who is in the best position to answer all of your questions.
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