An appeal is a review of the trial proceeding by an appellate court. Generally, filing an appeal is the final or last step in a criminal case. Therefore, in most cases, the appeal comes after sentencing. This is because the appeal is brought in order to correct a mistake and to avoid heavy penalties such as jail time, a criminal record, or a fine. If you are bringing an appeal, it is important to consult with a top criminal appeal lawyer.
At the law office of Deniz Sarikaya, we take a hands on approach with every case to ensure that your case gets the attention needed for a successful defence. As a result, we are able to devote time to your appeal to gain a thorough understanding of the facts and issues. Furthermore, we spend the time necessary to research the relevant and most applicable case law to help you succeed in your appeal. In addition, we specialize in criminal law and we have extensive experience defending criminal cases. Consequently, our level of experience has allowed us to build relationships with participants in the justice system and to create a strong reputation in the legal community.
There are three important aspects in bringing a criminal appeal. Firstly, the right to appeal. This includes the legal criteria for bringing an appeal and the correct venue to bring the appeal in. Secondly, perfecting the appeal and how the hearing is conducted. And, thirdly, how long it takes for an appeal to be heard and the need to seek bail pending appeal.
The right to appeal
When thinking about an appeal, it is important to know the nature of the proceeding. This is so because there are different types of courts that hear appeals. The nature of the proceeding will determine which court the appeal should be filed in.
To this end, there are two types of criminal appeals: appeals from indictable matters; and, appeals from summary conviction cases. As a general rule appeals are heard by an appeal court that is different from the court in which the matter was tried. For example, in Ontario, indictable appeals are heard by the Ontario Court of Appeal; while summary appeals are heard by the Superior Court of Justice.
Both indictable and summary conviction appeals are governed by the Criminal Code. However, the practice and procedural rules are different for each court. For the Court of Appeal, the rules are in the Criminal Appeal Rules; while summary appeal rules are in the Criminal Proceedings Rules.
The issues that can be appealed are legal issues not factual issues. That is to say that you may disagree with a fact the trial judge found, but you cannot appeal the facts. On the other hand, legal issues such as a legal ruling based on interpretation of the law can be appealed. For example, this could be a ruling about admissibility of evidence, or whether your Charter rights were infringed.
In addition to appealing a conviction, you can also appeal the sentence. This is so, whether the sentence was after a plea or trial. Generally, there is a range of sentence that is appropriate for each case. Sometimes, judges will go beyond the range in imposing a prison sentence or they may impose a jail sentence where one was not expected. These types of issues can be appealed. On the other hand, if the sentencing judge orders a sentence at the top end of the range, you cannot appeal that.
There are other issues that can be appealed as well. These include rulings by the trial judge in pretrial motions or in the course of the trial. However, regardless of when the ruling occurred, the appeal can only happen after the trial. This is why appeals often combine all the issues: from a pretrial ruling about admissible evidence to determining the appropriate sentence.
Perfecting the appeal
As mentioned above, the appeal court does not determine facts or reconsider the evidence. They rely on the evidence that was presented at trial. The evidence is provided to the appeal court by way of an appeal record. It is the obligation of the parties to provide the appeal record thereby perfecting the appeal.
Before you can appeal an issue there must be a final decision in your case. Usually, this is after sentencing. To begin the appeal process you must file a notice of appeal. The notice of appeal is the launch pad for the appeal. It is not the appeal and the appeal is far from perfected at this stage.
The notice of appeal must be filed within 30 days from the day the sentence was imposed. An experienced criminal appeal lawyer will serve and file the notice of appeal by sending three copies to the court and one to the crown attorney.
Once a notice of appeal is filed your appeal must be perfected. This means getting transcripts of the trial; putting together the appeal book which is a collection of significant documents relating to the trial; and, submitting a factum which is a written statement of your legal arguments. When the appeal is perfected, it can be listed for hearing.
Keep in mind that failing to perfect an appeal can lead to the appeal being dismissed. Making sure that your appeal is correctly perfected requires close attention to detail. However, putting together a persuasive record requires skill. Although the appeal record is essentially the history of your case, a strong appeal record is important to the success of your appeal.
At the appeal hearing, the lawyers can expand on the legal arguments that are set out in the appeal record. Generally, your lawyer will make arguments in favour of your issues. The presentation of arguments is just as important as knowing the facts and the law. Having a criminal appeal lawyer who has taken the time to prepare for oral argument is crucial.
There can be various outcomes of an appeal. The appeal court can allow the appeal and order a new trial or vary the sentence. In some occasions, although rare, they can overturn the conviction and enter an acquittal.
On the other hand, the appeal court may rule against you. If that is the case, the final step would be to appeal to a higher court. However, in the vast majority of cases, you will have to seek leave to appeal. An application for leave to appeal is a separate application from the appeal itself.
How long does an appeal take?
Your appeal may come at a date much later than when you were originally sentenced. This is because it takes time to perfect an appeal and schedule the hearing. Once the hearing is completed the next step is for the court to make its ruling. However, the ruling may not happen on the day of oral argument. Rather, it will happen at some later time. Unfortunately, there is no specific timeline for judgment on an appeal. For more complicated cases, the ruling could happen months after the argument.
One way to diminish the prejudice of waiting for your appeal is to seek bail pending appeal. This is a crucial part of any appeal process because there is a sense of injustice when a person is denied bail following a conviction that is later overturned on appeal.
In order to bring an application for bail pending appeal, you must first file the notice of appeal. Then you must file a notice of application for release pending appeal, an affidavit by the appellant, and other relevant materials in support of the application.
There are many reasons why you may want to consider an appeal. Maybe the judge made an incorrect legal decision or ruling. Maybe the sentence you received was beyond the appropriate range. These decisions can alter your life. That’s why it is important to make sure that they are correct.
Appeals are legally complex. In addition, the process itself can be difficult. There are deadlines that must be met and material that must be provided. Failing to meet these requirements can lead to the dismissal of you appeal.
Are you appealing a case? If so, it’s important to reach out to an experienced criminal appeal lawyer. Get in touch with the law office of Deniz Sarikaya at 647-282-5777 for a free consultation.