The Difference Between a Direct Criminal Appeal and a Post-Conviction Motion in Florida

Posted over 4 years ago. Applies to Florida, 4 helpful votes

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Direct Appeal

In Florida, a Defendant has 30 days to file a "Notice of Appeal" after being convicted of a crime. This Notice informs the parties and the court that the Defendant intends to pursue a review of the trial court proceedings in the appellate court. Thereafter, the Defendant must have an appellate record prepared (including transcripts, any pleadings filed, copies of exhibits entered into evidence, etc.), and file an appellate brief based on the appellate record. This is called a direct appeal. The issues in a direct appeal are limited to what happened in court during the trial. Every claim in the brief must be supported by a citation to the appellate record, as well as rely on case law and/or statute in supporting an argument. The main focus of a direct appeal, however, is the law. The appellate court is reviewing how the court decided issues of law, not the facts. Therefore, an issue decided by the jury, like credibility, would not be appropriate for direct appeal.

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Post-Conviction Motions

A post-conviction motion is not a substitute for the direct appeal. It is filed with the trial court instead of the appellate court, usually after the Defendant has lost on the direct appeal. The post-conviction motion addresses issues that may or may not have been clear by a review of the trial transcripts and record. It allows the Defendant to raise issues such as new evidence (for example, DNA testing that is likely to show the Defendant was innocent; evidence of perjury; juror misconduct; prosecutorial misconduct, etc.); ineffective assistance of counsel; changes to the law; etc. If the motion is denied, the Defendant can appeal the trial court's order by filing a "Notice of Appeal" within 30 days of the Order. An appellate record must be compiled including the evidence presented and a transcript of the evidentiary hearing. If there was no hearing, then the Defendant may appeal the denial of the evidentiary hearing.

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Seek Legal Assistance

Consult with an attorney before pursuing either appellate process. There are some time constraints, as well as loopholes, associated with both procedures. Seek assistance beforehand for a review of the facts specific to your case.

Additional Resources

Florida Appellate Practice, by Philip J. Padovano

Florida Online Statutes

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