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Direct Appeal VS Post-Conviction

Direct Appeal VS Post-Conviction

Following a conviction, a criminal defendant has an absolute right to appeal his conviction. He may do so by filing a direct appeal or, subsequently, a post-conviction petition. Both direct appeals and post-conviction motions have the same general goal: to ensure that a defendant has a fair and just trial. However, there are key differences when it comes to what can be argued, when it can be argued, and to whom it can be argued. At Pissetzky Law, we only handle direct appeals, not post-conviction petitions.

Direct Appeals

An instrumental part of an attorney’s job at trial is to preserve errors. Errors are preserved when attorney’s make objections or raise issues and arguments. An appeal is based on such errors of law committed by the trial court and preserved by the attorney, such as improper jury instructions, lack of sufficient evidence to support a guilty verdict, prosecutorial or jury misconduct, improper admission or exclusion of evidence, etc.

After a conviction, a defense attorney must file a legal brief outlining the legal errors made by the trial court judge in order to preserve the issues for the direct appeal. Once a person has been sentenced, a notice of appeal must be filed within 30 days with the Appellate Court (within 14 days if it was a federal case). The appeal will be heard by a panel of three judges on the appellate court. Once an appellate court receives legal briefs from both parties, the petitioner and the respondent, it will determine whether legal errors were committed by the lower court by reviewing the record, transcripts, and pleadings. The appellate court will not hear new testimony or consider new evidence. Rather, it accepts the factual findings of the lower court and focuses solely on legal errors.

If the court finds that the judge did make legal errors, it then determines whether the errors were harmless or reversible. Harmless errors are “insignificant” errors that did not or would not have had an impact on the outcome of the proceedings. Reversible errors, on the other hand, are errors that significantly affect a party’s rights and often would lead the appellate court to reverse the conviction. At the conclusion of an appeal, the appellate court may either affirm the decision of the lower court or reverse the decision and remand to the lower court for a new trial.

Post Conviction Petitions

While direct appeals focus on legal errors made at the trial court level, post-conviction petitions are concerned with the federal or state constitutional rights of a criminal defendant. A petitioner must show that his constitutional rights were violated due to ineffective counsel, a subsequent change in law, actual innocence, etc. The Illinois Post Conviction Hearing Act allows a petitioner to seek legal remedies such as requests for pardon, habeas corpus writs for ineffective assistance of counsel, new trials, or corrections of sentencing errors.

Post-conviction petitions are usually heard by the same judge who presided over the jury trial, unlike a direct appeal which is heard by a panel of appellate court judges. As suggested by its name, post-conviction petitions are usually made after a direct appeal is denied, however, where state law allows it, a post-conviction request for relief may be made while a direct appeal is still pending in order to comply with filing deadlines.

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