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When a jury decides to find a defendant guilty after a trial it is the trial court that decides what sentence should be imposed and not the jury (with the exception of death penalty cases). Immediately after sentencing the trial court is required to advise the now-sentenced-defendant that he or she has the right to appeal the sentence that was just imposed and that there is a right to appeal any potential error that occurred during or before the trial.

This right to appeal applies to each and every defendant that is sentenced in a criminal court. However, it is possible to waive that right should a notice of appeal not be timely filed with the clerk of court. There are specific deadlines for filing a notice of appeal.

In Federal court a defendant must file a notice of appeal within 14 days of the judgment and sentence.

In Florida circuit and county courts, a criminal defendant must file a notice of appeal within 30 days of the judgement and sentence.

Once a notice of appeal has been filed the appellate process begins to kick into action. The transcripts of the hearing or trial at issue must be typed up by the court reporter and the clerk of court begins to gather relevant documents filed in the case that will go up the appellate court as part of the case file. It is up to the parties to ensure that the appellate court has all the necessary documents for reviewing the issues raised on appeal.

For instance, if a defendant went to trial and was found guilty and sentenced then each day of the jury trial would need to be transcribed as well. In addition, any court hearings where issues were argued and preserved for appeal would need to be transcribed as well — like a motion to suppress evidence obtained in an illegal search that was heard before trial at a separate hearing date.

In order for a sentenced defendant to have the legal ability to argue certain issues on appeal the issue or issues must be properly preserved for review. Properly preserving an objection involves the lawyer for the defendant making a contemporaneous objection to the evidence or testimony sought to be excluded.

As seen on television a lawyer must stand up and announce “Objection” to the trial court when he or she believes improper evidence is about to be presented to the jury. The “objection” should then be followed by stating a simple legal basis for the objection and not some long-winded argument on the merits of the objection (known as a “speaking objection”). Trial judges are often extremely sensitive to this professional obligation.

Another way of preserving an issue for appeal involves filing a motion seeking to exclude or admit certain evidence prior to the trial commencing with a jury sworn ready to the hear the case. When the judge makes a definitive ruling on the motion prior to trial then the issue usually has been properly preserved for appeal.

A thorough review of the court file and all the relevant transcripts then gives the appellate attorney an idea of what he or she can argue in the body of the direct appeal. Proper preservation of error is vital to that analysis. In short, a successful criminal appeal involves many moving parts. Consider hiring a lawyer board certified in criminal trial law to handle your complex criminal matters.

Since 1976 The Matassini Law Firm has been fighting for the accused in both Federal and State trial and appellate courts. Nicholas G. Matassini is Board Certified in Criminal Trial Law by the Florida Bar. He can be reached for appellate consultations at ngm@matassinilaw.com.


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