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Criminal Appeals

Posted by attorney Daniel Hilf

You should hire an experienced criminal defense lawyer, such as the lawyers at ** Hilf & Hilf, PLC,** concerning any criminal appellate issues. Criminal appeals in Michigan are handled by several Courts depending upon the circumstances: The Michigan Supreme Court is the highest level Court in Michigan. It hears cases appealed from theMichigan Court of Appeals by filing an application forleave to appeal with the Supreme Court for the state of Michigan. In most cases the request for leave to appeal is denied, which leaves the decision of the lower Court unchanged. There are some matters which the Michigan Supreme Court has original jurisdiction, which are by and large not related to criminal law issues. In the small number of cases in whichleave to appeal is granted, the matter is heard by the Supreme Court for Michigan in Lansing. TheSupreme Court for the state of Michigan, which is comprised of a Chief Judge and six Associate Judges, hear oral arguments on cases after reviewing written briefs submitted by the parties to the case. The written opinion of each case is the decision that is reached by a majority of the Judges. Judges that do not agree with the majority write a dissenting opinion. Judges that agree with the majority's result, but have a different rationale for the decision, often write concurring opinions. From the beginning of the entire appellate process, it often takes years before a decision is reached unless it is being heard on an interlocutory basis (an appeal concerning an issue of law while the case is pending, such as an illegal search and seizure, etc.). For criminal convictions, the imposition of the sentence is rarely stayed by the trial Court or any Appellate Court– meaning that in many cases the Defendant has served all or a portion of his or her sentence (including jail or prison) before a decision is reached by the Appellate Courts. For persons that were wrongfully convicted, it is a very difficult process to sue the government to recover damages. The Courts are protected by immunity, and generally the police and/or Prosecutor must be grossly negligent or intentional (such as in the case of a malicious prosecution) in order for the wrongly convicted to prevail. The standard for legal malpractice is also a very high standard which is rarely met. If the conviction is sustained by the Michigan Supreme Court, the only possible avenues of relief available are through the Federal Court system, a Motion for Relief from Judgment, or a pardon. A Motion to Set Aside Conviction (which is also known as an expungement) may be pursued 5 years after the conviction is entered by the Trial Court depending upon the prior record of the Defendant (he or she can only have one conviction of his or her record, except for 2 minor convictions as defined by Michigan statute), and the nature of the conviction (there are certain offenses for which expungement does not apply, such as life maximum offenses, offenses under the Motor Vehicle Code, etc. For more information about expungements in Michigan, visit blog at my website. The Michigan Court of Appeals is an intermediate Appellate Court, between the Circuit Court and theMichigan Supreme Court. A criminal Defendant has an appeal by right to the Michigan Court of Appeals from a criminal Circuit Court trial conviction within 42 days of his or her sentence for that conviction. Anappeal by right means that the Michigan Court of Appeals has to review a conviction for any reversible error by the Trial Court, the Prosecution, and/or Defense Counsel. If the appeal is filed late, or the Defendant is appealing his or her guilty plea or sentence after a guilty plea, or if an interlocutory appeal is filed, it is in most cases discretionary with the Michigan Court of Appeals to even hear the issues contained within theapplication for leave to appeal filed on behalf of the Defendant by his or her lawyer. The criminal appeal, if heard, is decided by a panel of 3 Judges from the Michigan Court of Appeals assigned to the case who read the briefs submitted by the lawyers and in most cases listen to oral arguments concerning the merits of the case before rendering their decision. Any Judge from a Michigan Court of Appeals panel is free to write opinions that dissent from the other panel members if they do not agree with a finding by the majority. A Judge is also free to write a concurring opinion as well. An appeal of a conviction usually takes over a year, and sometimes even takes a couple of years, before a decision is made. If the appeal is unsuccessful, the litigant can seek leave to appeal with the Michigan Supreme Court. If the conviction is sustained by the Michigan Supreme Court, the only possible avenues of relief available are through the Federal Court system, a Motion for Relief from Judgment, or a pardon. For criminal convictions, the imposition of the sentence is rarely stayed by the Trial Court or any Appellate Court – meaning that in many cases the Defendant has served all or a portion of his or her sentence (including jail or prison) before a decision is reached. For persons that were wrongfully convicted, again it is a very difficult process to sue the government or others to recover damages. If the conviction is sustained by the Michigan Court of Appeals and the Michigan Supreme Court refuses to hear the case, the only possible avenues of relief available are through the Federal Court system, aMotion for Relief from Judgment, or a pardon. A Motion to Set Aside Conviction (which is also known as an expungement) may be pursued 5 years after the conviction is entered by the Trial Court depending upon the prior record of the Defendant (he or she can only have one conviction of his or her record, except for 2 minor convictions as defined by Michigan statute), and the nature of the conviction (there are certain offenses for which expungement does not apply, such as life maximum offenses, offenses under the Motor Vehicle Code, etc. For more information about expungements in Michigan, visit my website. The Circuit Court is the highest level Trial Court in the state of Michigan. However, the Circuit Court also has jurisdiction to hear appeals of District Court and Municipal Court convictions. It also hearsappeals from administrative agencies of the State of Michigan (for example the Driver’s License Appellate Division’s denial of driving privileges). In juvenile cases, the Circuit Court Judge hears any appeals of decisions made by juvenile referees or Friend of the Court referees. It also has superintending control over lower Courts, subject to the Michigan Supreme Court’s superintending powers. Superintending control is basically a command from a higher court to a lower court or administrative agency to conduct itself in a certain way concerning a particular issue or case. A Defendant in a District Court case has 21 days from the date of sentencing to seek appeal to the Circuit Court with jurisdiction over the matter. At theCircuit Court the matter is randomly assigned to 1 Circuit Court Judge to decide the matter. If the conviction is sustained by the Circuit Court, the only possible avenues of relief available are through theMichigan Court of Appeals(and ultimately theMichigan Supreme Court), the Federal Court system, aMotion for Relief from Judgment, or a pardon. A Motion to Set Aside Conviction (which is also known as an expungement) may be pursued 5 years after the conviction is entered by the trial level Court depending upon the prior record of the Defendant (he or she can only have one conviction of his or her record, except for 2 minor convictions as defined by Michigan statute), and the nature of the conviction (there are certain offenses for which expungement does not apply, such as life maximum offenses, offenses under the Motor Vehicle Code, etc. For more information about expungements in Michigan, visit my website.). For criminal convictions, the imposition of the sentence is rarely stayed by the Trial Court or any Appellate Court – meaning that in many cases the Defendant has served all or a portion of his or her sentence (including jail or prison) before a decision is reached. For persons that were wrongfully convicted, again it is a very difficult process to sue the government or others to recover damages. Thus, it is important to have an experienced criminal lawyer at both the trial level and during the course of an appeal if the appeal is necessary. An appeal can become very expensive because there are a number of steps that the appellate lawyer must do to perfect the appeal. The steps involved include: filing a claim of appeal, ordering a transcript of all Court proceedings, filing proof that the transcript was ordered, paying the filing fee for the appeal, serving the Prosecutor's office, paying for the transcripts, visiting with the client, reading all transcripts and relevant materials, conducting legal research, drafting the application for leave to appeal and or an appeal, filing theapplication for leave to appeal and/or anappellate brief, serving the appilcation for leave to appeal and/or appellate brief upon the Prosecutor, reading the response filed by the Prosecution to prepare for oral arguments, appearing at the oral argument, and filing the appeal again if necessary with an even Higher Court if the appeal is unsuccessful. There are also occasions when an appellate lawyer needs to file motions with the Trial Court and conduct evidentiary hearings at the Trial Court which also involve a lot of time and preparation. If the Michigan Court Rules are not complied with concerning the appellate process, the appea l could ultimately be dismissed by the Appellate Court without even rendering a decision on the merits. Hence, it is best to avoid the appellate process though the hard work of an experienced criminal lawyer. If an appeal is necessary, it is important to hire an experienced criminal lawyer to give the appeal the best possible chance of success

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