Interviewer: What can you get if you win an appeal? Is your case dismissed?
Randy Berman: It depends. In the example where the motion to suppress was denied by the trial court – you went to court and you lost – if the appellate court sides with you and believes that the evidence should have been suppressed, that generally will result in a dismissal because with no evidence they’ve got no case. That typically occurs in a contraband possession type of cases, such as guns or drugs or stolen property. If they don’t have the evidence or they can’t present it, there’s nothing to put before a jury. Those types of reversals get dismissed.
In other cases like prosecutorial misconduct where the prosecutor improperly makes an argument, for example, shifting the burden of proof to the defendant, that error usually results in a reversal and remand. When a case is remanded, it is sent back to the trial court for a new trial. Because the burden of proof is always on the state in a criminal case, if the state attorney says something to the effect that the defendant didn’t prove anything at trial, this may constitute reversible error. The defendant doesn’t have to prove anything at trial. The defendant can sit there and play crossword puzzles during the trial, doesn’t have to testify, doesn’t have to say a word; all the proof for conviction has to come from the state. It’s called improper burden shifting for the prosecutor to suggest that the defendant failed in their supposed responsibility to present evidence or prove anything to the jury. That type of error, if you get a reversal on that, generally results in a remand or a retrial. The case gets reversed on that issue and the appellate court remands it for a new trial. You’re not out of the woods but you get a new shot at it.
Interviewer: An appeal doesn’t stop sentencing? It doesn’t stop anything?
Randy Berman: Yes, it does not stop the process. If it’s a first time offender who is convicted, they have the potential of being released on an appeal bond pending the outcome of the appeal, even if they have been convicted and sentenced to incarceration, but again that’s only for people with no priors and it’s still discretionary with the judge to allow or not. By the way, all of my comments are directed to Florida residents regarding Florida Criminal Law. There might be different rules in other jurisdictions regarding these points.
Timeframe of an Appeal
Interviewer: How long might an appeal take, ballpark, from start to finish?
Randy Berman: The notice of appeal has to be filed within 30 days of the judgment and sentence. Appellant’s initial brief is due within 70 days of filing the notice. The appellate courts are generous with granting extensions so in reality an appeal from filing to decision generally takes about a year – sometimes less, sometimes more. The appellant files their initial brief, the state responds, and then the appellant is allowed to reply to the state’s response. When all the briefs are filed then it takes as long as the appellate court needs to review it, research it, and make their decision on it. They generally take anywhere between six months and a year. There is no set time for the Appellate Court to render its opinion.
When a Defendant is sentenced to a short term of incarceration, usually a county jail sentence that’s less than a year, unless the Defendant is granted an appeal bond, they will have served their time prior to the appellate court’s ruling and this may seem to be a wasted effort. However, a conviction and jail or prison sentence does have ramifications for people and their future. In Florida, once convicted of a crime, is it felony or misdemeanor that conviction stays on the person’s record for life. A conviction cannot be sealed or expunged, so getting a reversal of a conviction on appeal is still important, even if the sentence was already served.