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Instruction of Finishing the Notice Of Appeal Sample Form 33938872

I bet you didn't know that there are.nine different ways to appeal your.conviction watch this video and learn.how.[Music].my name is Patrick Mike Magaro I'm an.attorney who practices Appeals criminal.defense and post-conviction relief and.in this video what I'm going to do for.you is take you through the appellate.process and inform you of what a.criminal defendants rights are every.step of the way through state court and.into federal court into federal habeas.review and beyond now by the time you're.done watching this video you're probably.going to know more than the average.attorney about what the appellate.process is now my partner's here with me.he's laughing because for years I did.this on a yellow pad and paper every.time a client came into the office and.we're gonna flesh this graphic up for.you but Jamie ended up preparing a.graphic so that I wouldn't have to sit.there and draw it and you wouldn't have.to read my handwriting alright so the.first step in every case is we use.starting point is the trial court now.this is the trial court here that is.your average county court your Superior.Court your circuit court your district.court whatever the court maybe that's.where dreams are made or dreams are.broken lawsuits are brought people adopt.children people get divorced people sue.each other people get sued people have.to pay money to other people and most.importantly criminal prosecutions start.so here in the trial court.that's where judgments happen and.judgment can be gained by a trial after.a jury trial or a bench trial or after a.plea or a settlement but in any event.this is where things start off now if a.person is not happy with what happens in.a trial court they can directly appeal.that judgment up to an appellate court.now most states have three levels of.Appeal and what I'm talking about here.now is the intermediate appellate court.in Florida the intermediate appellate.court is called the District Court of.Appeal and it's broken up into five.separate districts in New York the.intermediate appellate court is called.the Appellate Division whether you're in.the first apartment second apartment.third apartment or fourth Department in.North Carolina it is called the North.Carolina Court of Appeals in Texas it's.called the.Court of Appeals in New Jersey is called.the Appellate Division there's only one.so on and so forth.intermediate appellate court in most.situations this appeal is what we call.an appeal as of right.meaning the intermediate appellate court.does not have the ability to turn you.down and say no we won't review your.case they have to review your case but.in a direct appeal and the reason why I.put the trial court and all these courts.in a box is because the intermediate.appellate court and if you get up to.that state Supreme Court and the.intermediate appellate court they can.only review what happened in the trial.court within the confines of the record.on appeal now what does that mean the.record on appeal the record on appeal.means anything that is said in open.court that is either recorded by.electronic means or taken down by a.court reporter that's part of the record.if a piece of paper a motion or an.indictment or an information or.something or an order is filed with the.clerk of the court and contained in the.court file that is also part of the.record on appeal what's not in the.record on appeal private conversations.between attorneys and their clients.private conversations between attorneys.for each side conversations at the bench.or in chambers with the judge that are.not recorded by a court reporter those.are things that are not on the record a.lot of times discovery is not part of.the record either unless it's attached.to a part of a motion or it's filed.independently which usually doesn't.happen so in the direct appeal the.intermediate appellate court will review.the record on appeal and look for any.errors committed by the trial court and.in some circumstances the attorney for.the defendant we're talking about a.criminal case here or the prom or in.some circumstances the prosecutor if the.intermediate appellate court agrees that.there was an error committed here that.affected the rights of the defendant.that Court has the power to reverse or.modify the judgment of conviction from.the.trial court so think of the law as.medicine different symptoms if you're.sick required different medicines you.would not prescribe pepto-bismol to.somebody who had a cold and was worse.okay here we are in coronavirus he.wouldn't prescribe pepto-bismol to.somebody with coronavirus you wouldn't.prescribe pepto-bismol to somebody who.had cancer you would prescribe.pepto-bismol to somebody who had a.stomach problem so just like medicine.the law has certain remedies for certain.errors certain symptoms some errors.require a reversal of the conviction and.a new trial.some errors require a reversal and.dismissal of some or all of the charges.and some require a modification of the.sentence or reduction of charges.sometimes from a felony to a misdemeanor.or sometimes from a higher felony down.to a lower felony thing back to where we.are if a defendant is not happy with the.judgment of an intermediate appellate.court they can petition for.discretionary review to the state.Supreme Court what does that mean in New.York the Supreme Court is actually not.the highest court it's actually the.trial court in New York the highest.court has actually called the Court of.Appeals but in most other states like.Florida the highest court is called the.state Supreme Court or the Florida.Supreme Court or the North Carolina.Supreme Court Texas is also a little bit.different in criminal case in Texas it's.called the Texas Court of Criminal.Appeals which is a separate court than.the Texas Supreme Court which does not.handle criminal cases at all anyway a.petition for discretionary review asked.the Supreme Court of that state to.review the appeal to see if there are.any issues worthy of consideration.because unlike the intermediate.appellate court the state Supreme Court.does have the power to turn away cases.that they don't want to hear with.certain exceptions and and those you're.usually death penalty cases but let's.say it's your average run-of-the-mill.criminal case that does not involve the.death penalty the state Supreme Court.the highest court in the state has.discretionary jurisdiction meaning they.have the discretion to take whichever.cases they feel like hearing on which.case they don't feel like hearing.take away kids they don't feel like.hearing so let's say the defendant.petitions for discretionary review in.the state Supreme Court and either the.state Supreme Court has turned them down.or they have accepted the case where the.defendant has lost then the defendant.has three choices you can continue your.direct appeal to the United States.Supreme Court I write that Oscoda SCOTUS.means Supreme Court of the United States.and the United States Supreme Court just.like the state Supreme Court has.discretionary jurisdiction again the.Supreme Court can decide and with very.few exceptions whether to take the case.or deny it or not take the case and in.reality the United States Supreme Court.turns down about 99% of the cases a.petition for it every single year so.let's say the defendant does not want to.take that route and go to the Supreme.Court route what the defendant can do is.then and whatnot we recommend is then go.down here following this red line to.post-conviction relief post-conviction.relief is a generic term I have.explained that and my partner has.explained that in another video but.basically in post-conviction relief a.defendant is challenging the validity of.their conviction back in the same trial.court and that's why I have it as a.separate column here because this.shadows the trial court it's a separate.type of Appeal so let's go back to where.I was talking about the record on appeal.before let's say a defendant tells their.attorney privately they did not commit.the crime because they had an alibi.that's not part of the record so that's.not something they can challenge in.direct appeal but if they've exhausted.the direct appeals or let's say the.defendants plead guilty and waive their.right to direct appeal they can then.immediately file a post-conviction.relief petition or post-conviction.relief motion challenging the validity.of their conviction based on the fact.that their attorney did not do a good.job in representing them because they.told their attorney they had an alibi.and that alibi was never presented to.the trial court in the first instance so.in post-conviction relief in Florida we.call that a rule 3850 motion in new york.the brand.name is a 440 motion in New Jersey it's.called the PCR petition in North.Carolina it's called a motion for.appropriate relief in Texas that's.called an 11-point ou7 habeas corpus.petition whatever the brand name is it's.all the same thing basically in a.post-conviction relief motion the.defendant is challenging the validity of.the original judgment based on new.information that is not in the record.now if a defendant loses a.post-conviction relief motion they can.appeal that post-conviction relief.motion again to the intermediate.appellate court now here this is where.things get a little bit dicey in Florida.a post-conviction relief appeal there is.a right to appeal to a higher court so.if you lose a post-conviction relief.motion in Florida rule 3850 motion you.have the right to appeal to this.District Court of Appeal in New York you.do not in New York you have to ask.permission and that's called a motion.for the leave you have to ask permission.for the appellate court to take the case.same goes in North Carolina after.petition for what's called a writ of.certiorari in New Jersey you have the.right to appeal as well in Texas believe.it or not you skip this and go right up.to the Texas Court of Criminal Appeals.most states do not have a mechanism for.appealing a post-conviction relief.motion past the intermediate appellate.court but for those that do you can.petition them just like you would in.direct appeal you'd have to petition and.get permission the petition for a writ.of coram nobis is a procedure in which a.defendant challenges the effective.assistance of counsel on their direct.appeal so if you file if you're.following a coram nobis petition you're.saying that your intermediate appellate.court that judgment was invalid because.the attorney that represented you there.did not fill did not raise an issue that.could have should have and would have.been raised properly that the trial.court messed up so let's say now the.defendant has come to the point.where.they have exhausted every possible.remedy through the state court system to.challenge their state judgment of.conviction let's say they've gone to.trial they've gone the entire route.through direct appeal then they've gone.the entire route through post-conviction.relief or if they do not go to trial and.they pled guilty and they waive their.right to appeal as part of a plea.bargain.they've gone directly to post-conviction.relief and gone that route and the state.courts have just given them no relief.whatsoever at that point a defendant can.take their case over to federal court.the federal district court and challenge.their conviction through a federal.habeas corpus petition pursuant to 28.United States Code section 2254 that's a.law that gives the federal court's.jurisdiction or the power to review a.state conviction and determine whether a.defendant's rights have been violated.and if so to grant them the same relief.that they would have gotten in the state.courts that the state courts gotten it.right now there are three basic.requirements that a defendant has to.satisfy before they can take their case.to federal court and challenge their.state conviction I'm going to go through.each one of these three requirements in.greater detail the first requirement is.that the claim that's raised in federal.court has to be based on an issue.involving federal constitutional law the.second requirement is what's called.exhaustion meaning the defendant has to.first exhaust the federal claim through.the state courts and the third.requirement is that the federal habeas.corpus petition has to be filed within.one year of the date that the state.court conviction becomes final which I'm.going to explain okay so the first.requirement that the claim has to be.based on federal constitutional law give.you an example let's say a defendant has.raised in a direct appeal or a.post-conviction relief motion that they.were denied their right to a trial by.jury now we all know that a trial by.jury is guaranteed by the Federal.Constitution that would be a federal.constitutional law claim let's say.instead the defendant has raised a claim.in his state court appeal that the.evidence that was received against him.at trial violated some provision of the.state's evidence code or the law that.sets forth the requirements for.admission of evidence that would be a.purely state law issue which would not.be reviewable in a federal court on a.federal habeas corpus claim so now is.the second requirement what we call.exhaustion any federal claim that's.raised in a federal habeas corpus.petition has to first be raised in the.state courts and the defendant has to.take that issue as far as they possibly.can go so if you're on direct appeal the.defendant has to raise the issue at the.intermediate appellate court and at.least try to get into the state Supreme.Court or if they do get into the state.Supreme Court on discretionary review to.raise that same federal constitutional.claim in the state Supreme Court or if.you're on post-conviction relief and.let's say the defendant raises an issue.involving ineffective assistance of.counsel and the motion is denied the.defendant at least has to try to appeal.the denial of that motion on that same.ineffective assistance of counsel claim.to the appellate courts in that state.and you have to take it as far as you.can go if you don't you will have what's.called procedural default meaning the.claim that you try to raise in federal.court will get dismissed because you did.not take that claim as far as it could.go through the state court system the.third requirement is the trickiest one.that is the statute of limitations the.statute of limitations in federal court.for a federal habeas corpus petition.requires that a defendant file their.federal habeas petition within one year.of the date the state conviction becomes.final now that has a very specific.definition a state conviction becomes.final as of the date that the last.appellate court on direct appeal heard.the claim or heard the appeal and.affirmed the conviction or if there was.no direct appeal the.date that the time to appeal directly to.a higher court has run out now I always.say think of it as a stopwatch certain.events start the clock ticking and.certain events stop the clock and freeze.it in place so let's just say for the.purposes of argument that a defendant.went to trial was convicted appealed his.conviction was denied at the.intermediate appellate court and tried.to apply for discretionary review in the.state Supreme Court and the state.Supreme Court denied their petition for.discretionary review on January the 1st.2019 that means that the conviction is.final as of January 1st 2019 and that.1-year statute of limitation starts to.run on January 1st 2019.now there's a way that a defendant can.stop that clock from running and that is.to properly properly being the important.term here file a motion for.post-conviction relief after the direct.appeal has concluded so let's say the.conviction is affirmed on January 1st.2019 and a month goes by and on February.1st 2019 the defendant files a motion.for post-conviction relief that clock.now stops as of February 1st 2019 and.it's frozen in place while the state.court deals with the post-conviction.relief motion okay so now let's say the.defendants motion for post-conviction.relief is denied he appeals it and he.takes it as far as he can go through the.appellate court system the appellate.courts affirmed the denial of.post-conviction relief on June 1st 2019.that's the date that the defendants.statute of limitation starts to run.again it's like licking that stopwatch.back on but remember that 30-day period.between January 1st and February 1st.when the defendant first filed his.motion for post-conviction relief that.30 days is water under the bridge.the one-year starts up again from June.first 2019 - that 30-day period so we.know that the defendants statute of.limitations will run out on May 1st 2020.11 months from that day I always say a.court is never gonna fall you for filing.early they will fault you for filing.late because if you are even one day.late and filing your federal habeas.corpus petition in federal court it will.get dismissed and it'll never even be.heard so now let's say that the.defendant has unsuccessfully petitioned.federal court for a writ of habeas.corpus pursuant to 28 United States Code.section 2254 the federal court has.denied their federal habeas corpus.petition what can you do at that point.well you can and you should file a.motion for certificate of appealability.to the United States Court of Appeals.for whatever circuit that you're in so.if we look on a map we see that the.federal courts just like the state.courts have divided the country into.several different circuits or zones so a.defendant who has unsuccessfully.petitioned a federal district court for.a writ of habeas corpus can appeal that.denial to the United States Court of.Appeals but just like those state courts.they have to petition the court for.permission to appeal and that is what's.called a certificate of appealability if.a motion for a certificate of.appealability is granted then a.defendant has permission to appeal the.denial of habeas corpus to a United.States Court of Appeals if the United.States Court of Appeals denies a motion.for a certificate of appealability or.they grant the motion here they appeal.but ultimately affirm the denial of.habeas corpus then a defendant has the.option to again petition the United.States Supreme Court for certiorari and.again same rules apply you have to ask.for permission to get into the Supreme.Court and you have to be successful in.the Supreme Court to win so now let's.switch gears and say that this is a.federal conviction not a state.conviction.basically the same process as a state.court appeal applies here and let's say.the defendant has been convicted in.federal court after a jury trial or a.bench trial they have a right to appeal.to the United States Court of Appeals.for whatever circuit that that federal.district court was situated in let's say.a defendant has appealed their.conviction after a trial to the United.States Court of Appeals which has.affirmed the conviction the defendant.then has the right to petition the.United States Supreme Court for.certiorari again permission to appeal to.the United States Supreme Court and if.that petition is successful then the.defendant can appeal to the United.States Supreme Court the highest court.in the land directly so let's say the.defendant has appealed his conviction to.the United States Court of Appeals.Kathir conviction affirmed has tried to.go to the US Supreme Court the Supreme.Court has turned them down has now.exhausted all of their direct Appeals or.let's say the defendant has pled guilty.in the district court pursuant to a plea.agreement and as part of that plea.agreement has waived their right to a.direct appeal there is an option for.post-conviction relief in federal court.and that is called a petition to vacate.or set aside a sentence pursuant to 28.United States Code section 2255 as.opposed to 2254 which is a challenge to.a state court conviction a 2255 petition.is the same method of post-conviction.relief that you would raise in state.court except that happens to be in.federal court again there is the 1-year.statute of limitations that applies the.2255 petition has to be filed within one.year of the date the conviction becomes.final again that means that the 2255.petition has to be filed within one year.of the date that the last direct appeal.has been filed and affirmed or the time.to appeal has run out after a guilty.plea in the after a judgment of.conviction has been entered now let's.say 2250.five petition has been denied again the.defendant has to petition the United.States Court of Appeals for permission.to appeal through a motion for a.certificate of appealability and then.from there it's the same process of.appealing to the United States Supreme.Court the defendant has to file a.petition for certiorari and had that.granted in order to get their foot in.the door I hope this video has given you.enough information to make an informed.decision.I hope this video if you're an attorney.I hope this video has given you enough.information to properly advise a client.as to what their rights are and if you.ever have any questions please feel free.to pick up the phone give me a call if.you like this please smash that like and.subscribe button check out our other.videos on the channel there's a lot of.other information out there which I'm.hoping will make everybody more aware of.their rights so that their rights don't.get trampled once again my name is.Patrick Michael Magaro I'm an appeals.lawyer thank you for watching stay tuned.for this important announcement if you.like this program please click that like.button hit that notification bell and.subscribe to our YouTube channel Appeals.Law Group.you can also follow us on our Facebook.pages for you Floridians that's Florida.weekly round-up for you New Yorkers.that's New York weekly round-up for.everyone else that's whole Scott Magaro.and appeals low group you can follow me.on twitter @ PM Magaro and please make.sure you visit our website wwlp.com in.I'll peel and post-conviction relief.

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