Criminal Appeals
Post-Conviction Remedies
The Law Offices of Sydne FrenchAggressive Defense Against the Power & Resources of the State
Criminal Appeals Lawyers
Post Conviction Attorneys
Criminal appeals is one of the toughest areas of practice in criminal defense. There are many factors that work against the criminal appellant. Legal doctrines and procedures in place make it all too easy for an appellate court to find a reason to deny relief. Challenging a criminal conviction is an uphill battle requiring a thorough knowledge of the relevant legal issues and procedures, and there is no room for error. We believe that any battle worth fighting, is worth fighting well enough to win!
Attorney Sydne French is known for her aggressive, no-nonsense approach to her appeals and postconviction remedies. She has won awards for her work with the Wisconsin Innocence Project and she has been invited to speak at numerous functions on the importance of pursuing justice through criminal appeals. She is dedicated to seeing that justice is done for her clients, and she is ready to do the same for you.
Contact our office to schedule a free initial consultation with Attorney French in our Waukesha office or Milwaukee office. She will give you a fair and honest evaluation of the legal rights and options you may have to challenge your case.
Overview
Postconviction remedies are divided into two main types: direct appeal and collateral review.
In Wisconsin, every defendant has the right to one direct appeal. Once a defendant has ad a direct appeal, or has waived the right to a direct appeal, the defendant no longer has a "direct" avenue to challenge the conviction and sentence. Thus, any other forms of relief are called "collateral," rather than direct.
There are two major collateral avenues that a criminal defendant may use in an attempt to vacate his or her conviction. These are:
- state motion for postconviction relief under Section 974.06, and
- federal habeas corpus.
The purpose of this information sheet is to give an overview of the different circumstances in which each is appropriate. This overview also briefly discusses three other remedies that come up less often:
- certiorari petitions,
- state habeas corpus motions, and
- motions for a new trial based on newly discovered evidence.
Direct Appeal
Every person has the right to a direct appeal following his or her conviction and sentencing. On direct appeal, the convicted person has a right to the appointment of an attorney at state expense if he or she is indigent (unable to afford an attorney under the standards set by state law).
Primary Forms of Collateral Relief
Wisconsin Stat. section 974.06: This postconviction remedy statute may apply to convicted persons who have never had a direct appeal. It may also apply to defendants who have had a direct appeal, but who, for some "sufficient reason," were unable to bring the claim they now want to assert as a part of their direct appeal. Section 974 relief is limited to constitutional or jurisdictional issues.
Federal Habeas Corpus: Federal habeas corpus relief under 28 U.S.C. section 2254 is designed to allow federal courts to provide oversight of the way state courts are implementing (or refusing to implement) federal constitutional rights. It is available to correct state court decisions that flagrantly violate the federal constitution. To file a federal habeas petition, a defendant must demonstrate that the issue(s) raised in the federal habeas petition have been pursued as far as they can be pursued in the stat court, and that they are based on clearly established federal constitutional law. A federal habeas corpus motion must be filed within one year of the date that the defendant's state conviction became final.
Other Forms of Collateral Relief
In addition to section 974.06 motions and federal habeas corpus petitions, three other forms of collateral challenges are available to Wisconsin defendants. They are: certiorari petitions, state habeas corpus petitions, and motions for a new trial based on newly discovered evidence.
CERTIOARI PETITIONS.
A petition for a writ of certiorari is the primary avenue to challenge an administrative decision to revoke probation or parole. Certiorari petitions are discussed in the information sheets on revocation of probation and parole/ES supervision, and on conditions of confinement issues.
STATE HABEAS CORPUS.
State habeas corpus petitions are available to any person in the state who is under an illegal restraint of liberty. These petitions are governed by Chapter 782 of the Wisconsin Statutes. To file a state habeas, an inmate must show that there is a constitutional or jurisdictional error relating to his or her custody. State habeas is a broader e=remedy than section 974.06 (which is limited to criminal convictions or sentences) because state habeas also applies to persons under mental heath commitments, or other types of custody.
NEWLY DISCOVERED EVIDENCE.
The standards for what kind of newly discovered evidence "counts" are strict:
- the evidence must have come to the defendant's notice after trial,
- due diligence would not have uncovered the evidence before trial,
- the evidence must be material and not cumulative, and
- the evidence would probably change the result of the trial.
The deadline for bringing motions for relief from judgment on the round of newly discovered evidence is one year after the judgment is entered. In some cases, however, the courts will allow a motion trial based on newly discovered evidence more than one year after the judgment, if the new evidence is not discovered until after that time.
Attorney French has devoted her practice to defending adults and juveniles who are under investigation for, have been charged with, or convicted of, criminal or drunk driving offenses. She handles cases across southeastern and northeastern Wisconsin, most frequently covering Brookfield, Milwaukee, Waukesha, Racine, Kenosha, Jefferson, West Bend, Fond du Lac, Ozaukee, Washington, and Dodge counties.
