Our practice area focuses on direct appeals and post-conviction work in state and federal court. While almost everyone has some idea of what a trial is like from TV, movies, or books, significantly fewer people are familiar with the appellate and post-conviction process. So, this is going to lay out some of the basics for how the appellate process works for criminal cases after trial in the circuit court in Alabama.
First, everyone has the right to appeal a conviction after a trial in Alabama. The vast majority of these appeals happen after a person has been convicted in the circuit court—where jury trials happen. There are three appellate courts in Alabama: the Alabama Supreme Court, the Alabama Court of Criminal Appeals, and the Alabama Court of Civil Appeals. This will focus on the Supreme Court and Court of Criminal Appeals.
The process starts with filing a notice of appeal in the circuit court. This is a critical filing that must be filed within 42 days of sentencing or within 42 days of the denial of a motion for new trial if the motion is filed. If the notice of appeal isn’t filed before this deadline, the appeal will be dismissed. If this happens, it is possible to file for permission to file an out-of-time appeal, but this is best avoided by filing a timely notice of appeal.
Once the notice of appeal and other required paperwork has been filed, the appeal will be docketed with the Court of Criminal Appeals and the record on appeal will be prepared. For us and our clients, this period is a waiting game. Depending on the size of the case, it may take several months before the certified record on appeal is complete. This record will contain all of the filings—motions, notices, orders, exhibits, etc—from trial and the transcripts of all proceedings recorded by the court reporter.
Once the record is complete and certified, the waiting game is over. At that point, we will begin to review the record. At this stage, we have to be able to point to something specific in the record to argue that it was done incorrectly at trial. The certified record on appeal functions as the Bible in direct appeals. If something isn’t in the record, then it functionally doesn’t exist on direct appeal. If an objection was not on the record, it can’t be argued. Things that weren’t done can’t be argued if there isn’t a basis for it in the record. This is why claims of ineffective assistance of counsel are so difficult to do on direct appeal.
Once our review of the record is complete, we do research and see what can be argued in a brief. Briefs are written documents laying out the procedural and evidentiary history of a case—what happened, how it got here, what the issues are, etc—and arguments for why our client needs a new trial because something was done wrong at trial. Common issues on direct appeal include things like:
- Sufficiency of the evidence—did the State present sufficient evidence to legally convict our client?
- Evidentiary issues—did the circuit court mess up and allow the State to present evidence that it shouldn’t have, or did it improperly prevent a defendant from presenting key legal evidence?
- Suppression issues—was evidence obtained illegally in violation of the Fourth or Fifth Amendments?
- Jury instructions—did the circuit court make a mistake in how it instructed the jury?
These are just examples of common issues that come up. The arguments about these issues rely on Alabama statutes, rules of procedure, and caselaw—meaning previous decisions by the courts.
This stage is also where the waiting game ends temporarily for us. Once the record is complete and certified, we have 28 days to file the opening brief, also known as the appellant brief. Twenty-eight days is not a lot of time to do all we need to do, so we almost always ask for at least one or two extensions depending on the case and how our other cases are going. In larger cases, we may ask for several extensions.
Once the brief is done, however, we will get it filed. Once the brief is filed, the State has 21 days to review the record and our briefing before filing a brief in response—the appellee brief. Just like with the appellant brief, it is not unusual for the State to request one or more extensions depending on the size of the case. But once the State has filed their brief, we will review it and anything else we need to before deciding on what to include in the reply brief. The reply brief is our chance to say “no, the State’s arguments are wrong and here is why.” The reply brief is due 14 days after the State files its brief.
Unfortunately, once the reply brief has been filed, the waiting game starts again. Until the Court of Criminal Appeals rules in a case, nothing much can or does happen with the case. There is no way of knowing how long it may take the Court to make a decision. Sometimes it happens very fast—a matter of weeks or a couple of months. Other times, it may take well over a year before a decision is reached.
Once the Court of Criminal Appeals has made a decision it will issue an opinion explaining that decision. There a number of technical decisions the Court can make but the most basic is that it will either affirm or overturn. Affirming means that the Court did not agree with the defendant and doesn’t believe problems occurred that required a new trial. Overturning means that the Court agreed with the defendant and that something at trial was done wrong and has to be fixed. This can affect the conviction or the sentence. Anytime the Court issues an opinion overturning a conviction or sentence, that opinion is published. This means it becomes binding law that affects future cases in the trial courts and before the Court of Criminal Appeals. When the Court affirms, however, it may issue a published or unpublished opinion. An unpublished opinion—known as a memorandum opinion—does not become law and generally means that the Court did not think the issues were important enough or involved new aspects that warranted being published. A published affirming opinion means that the Court believed that, although the errors did not require overturning a conviction or sentence, the case involved issues that needed to be addressed in a way that impacts future cases.
Within 14 days of the Court reaching a decision, the losing side can file an application for rehearing. This is a way of trying to get the Court to reconsider its decision. The reality is that the vast majority of the time applications for rehearing are a formality and are quickly overruled. But the application is important because, in criminal case, filing the application is a requirement before asking the Alabama Supreme Court to grant a petition for a writ of certiorari within 14 days of the application for rehearing being overruled.
Unlike the Court of Criminal Appeals, a defendant does not have an automatic right to appeal to the Alabama Supreme Court. Instead, a defendant has to file a petition for a writ of certiorari. This is a fancy legal way of saying you have to ask the Court to consider your case. Generally speaking, the Alabama Supreme Court does not accept very many criminal cases and, when they do, it is in specific types of cases where there is an issue of law it needs to resolve or because the Court of Criminal Appeals’ decision conflicted with other decisions. This means that a petition for a writ of certiorari has to be pretty specific in identifying an issue that the Court needs to address and explain why the issue needs to be addressed.
On the rare occasions that the Alabama Supreme Court grants the petition, however, the process is similar to the initial briefing stage at the Court of Criminal Appeals with new briefs. But, even if the Court accepts the case and orders briefing, it is not uncommon for the Court to change its mind and quash the writ—essentially saying we shouldn’t have accepted this case and dismissing the case. Because the Alabama Supreme Court does not accept many criminal cases, most of the time the petition is denied, and a certificate of judgment is issued. This means that the direct appeal process in state court has ended, and the post-conviction process will start. The post-conviction process will be covered in another post.
One thing to remember, with a few rare exceptions and depending on holidays, almost all Alabama appellate courts release opinions on Friday mornings.
