CRIMINAL APPEALS
Las Vegas Criminal Appeals Attorney
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In Las Vegas, a conviction does not end the justice process. With a conviction of a felony or gross-misdemeanor, you are entitled to an appeal. You must act quickly though. You only have 30 days in which to file the motions for the appeal.
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It is important to know whether or not your trial attorney does appeals. Some trial attorneys do not handle appeals. Thus, it would be a good idea to get an appeals attorney on standby in case you are convicted at trial.
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Joseph Gersten has extensive experience with criminal appeals and writs. He previously worked for the U.S. Attorney's Office, a Federal judge, and while in private practice worked on many appeals.
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By retaining Joseph Gersten for your appeal, you will receive an advocate with a wealth of experience, and extensive research skills.
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Nevada Criminal Appeals Information Center
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What is an Appeal?
An appeal is a request to a higher court to review and reverse the decision of a lower court. An appeal asks the higher court to decide that the lower court committed some sort of error, and its decision should be overturned. Asking via a post-trial motion for a trial court to either reverse its judgment or order a new trial is seldom successful. Therefore, a defendant’s only hope of overturning the trial court’s decision is to appeal.
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Via appeal, a defendant may challenge the conviction itself, decisions during the trial, rulings on pre-trial motions or may appeal the trial court’s sentencing decision.
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Appeals are based on the record and transcripts created in the lower court. No new evidence is presented and no new testimony is heard. The higher court will make its decision based on what happened in the lower court and on arguments before the higher court. During an appeal, the higher court is only looking for procedural and constitutional errors that occurred during the trial.
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Nevada has two higher courts, the Appellate and Supreme Courts. The Nevada Supreme Court reviews appeals for the state of Nevada so it has an extremely large case load. In order to handle this large case load, the Court has established an expedited process for some criminal appeals.
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Criminal convictions that do not carry a life sentence must appeal using the Fast Track process. This is an appeal limited to 15 pages in which the appellant states the pertinent issues for the Court. If needed, the Court may ask for expanded briefs and go further in depth on some issues.
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For a life sentence, an appellant must file a full brief and is not eligible to file an abbreviated brief in the Fast Track process.
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Writing an appeal is lengthy and detailed. Every legal document filed, the testimony of every witness and every ruling the trial judge made in the jury trial must be reviewed and analyzed. This is necessary in to determine the significant issues that could be the basis for an appeal. Issues that are not raised in an appeal may be forever waived by the Defendant. Therefore, it is important that you have an experienced appellate attorney who can spot the those issues that are important for appeal. If you do not address all the issues, you may never be allowed to raise those issues again.
What issues can the Criminal Appellate Court hear?
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An Appellate Court, like the Nevada Supreme Court, decides questions of law, like whether the previous judge applied the law correctly. The Appellate Court does not hear testimony or retry the case. An appeal is generally decided on the written record from the original trial or court proceeding. Issues brought to an Appellate Court for review are sually:
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Incorrect rulings on admissibility of evidence
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Incorrect application of a law
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Incorrect application of a regulation
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Improper jury instructions
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Insufficient evidence to support the verdict
The Criminal Appeals Process
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To begin an appeal, a written notice of appeal is filed with the clerk of the court in which the proceeding took place. In Nevada, a person must file a notice of appeal with the District Court Clerk within 30 days of the conclusion of the previous case.
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Once a notice of appeal is filed, transcripts of the underlying proceedings are gathered. All parties receive notice once the record has been filed with the Appellate Court.
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From the date the record is filed, the appellant has a specified period of time within which to file an opening brief, typically 120 days. A “brief” is a written argument that an attorney prepares for the court. It details the issues raised by the appellant, including challenges to the District Court ruling or findings, and refers to applicable laws and cases.
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The respondent is then has an opportunity to file an answering brief, and then the appellant may file a reply brief.
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Sometimes, a panel of justices will hear oral arguments. A member of the panel will then prepare and file and opinion or decision, which is a written statement of the Court’s decision.
What is a Writ?
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A “writ,” in Old English, means a letter, often written by an attorney. In modern American jurisdictions, a “writ” is an order from a higher court to a lower court or to a government official such as a prison warden.
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Defendants may seek several types of writs from appellate courts directed at lower courts. Writs, like appeals, are complex and require an in-depth review of the record. Defendants facing writ situations should consult counsel.
What is a Writ of Habeas Corpus?
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Defendants who want to challenge the legality of their imprisonment, or the conditions of imprisionment, may seek help from a court through application known as a writ of habeas corpus.
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A writ of habeas corpus (literally “produce the body”) is a court order to a person or agency holding someone in custody to deliver the imprisoned individual to the court.
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Many state constitutions provide for writs of habeas corpus. The United States Constitution also provides for writs of habeas corpus, and it specifically forbids the government from suspending writ proceedings unless there are special circumstances.
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The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions. This ensures that people in this county will not be held for long times in prison in violation of their rights.
What is the difference between a writ and an appeal?
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Writs usually are considered to be extraordinary remedies. This means they are permitted only when there is no other adequate remedy, such as an appeal. Basically, a defendant may draft a writ to contest a point that the defendant can't raise on appeal.
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Generally, writs apply to issues that are not apparent in the record of the case itself. Think when an attorney fails to investigate a possible defense. Post-conviction writs are the only time a Defendant can raise the issue that he did not receive his 6th amendment right to effective assistance of counsel. A writ is the proper place to claim that your counsel was ineffective and act as a reasonable attorney should. Below are some reasons that may prohibit an appeal (and justify a writ):
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The defense inadvertantly did not lodge a timely objection at the time of the alleged injustice.
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A final judgment has not been entered in the trial court. However, the party seeking the writ needs relief immediately to prevent an injustice or unnecessary expense.
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The matter is urgent. Writs are heard more quickly than appeals,. Thus, defendants who feel wronged by actions of the trial judge may take a writ to obtain an early review by a higher court.
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The defendant has already filed an unsuccessful appeal. Defendants generally may file multiple writs, but the right to appeal is limited to one. However, filing a writ that simply duplicates an unsuccessful appeal is frivolous, and will be dismissed immediately.
How a lawyer can help
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An appeal or a post-conviction writ is a highly technical process. You want an experienced attorney who knows the rules of procedures and can properly file the correct legal documents. Without an experienced appellate attorney you may be forever waiving your right to raise significant issues in your defense. If you have been convicted of a crime, time is a critical factor in your appeal. You must speak with a qualified criminal defense appellate attorney immediately to make sure that all your rights are addressed and preserved. An attorney can walk you through the process and find those errors that you may not have known even existed. Call Joseph Gersten today for a free case evaluation to discuss your case and what rights you have.
Resources
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Nevada Rules of Appellate Procedure
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Official rules of Appellate procedure for the state of Nevada. Includes the recent February 2010 amendments.
Finding the Best Las Vegas Appeals and Post-Conviction Attorney
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If you are interested in reversing a criminal charge, we encourage you to contact us now on (702) 857-8777 for a free/no obligation consultation during which we can discuss the possibility of success and the process involved. Joseph Gersten is an experienced Nevada criminal defense attorney who has extensive knowledge writing, filing, and litigating appeals.
