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When Can I Appeal a Case? One of Florida's Most Reputable Defense Law Firms

When Can You Appeal a Case?

You cannot appeal a case just because you lost.

You have seen it in the news and in the movies and television. Someone involved in litigation is handed a negative ruling or verdict. As reporters ask them about the decision, they comment that they will be appealing the issue or that they believe they have good grounds for an appeal.

What does that mean?

The losing party in a civil case or a convicted defendant in a criminal case does have the right to one appeal. That does not necessarily mean exercising that right will produce a better result. Although you have the right to appeal, you cannot win unless you have grounds for an appeal--that means good reasons why you should get a new trial, or some other relief.

Merely receiving an adverse decision is not grounds for an appeal. A successful appeal requires establishing that the trial court made one or more mistakes that were important enough to require the judgment to be set aside.

An appeal can be successful if it establishes evidence admitted which should not have been or if the trial court excluded evidence that the jury should have considered. Cases can also be reversed if the trial court improperly applied the law or incorrectly instructed the jury as to the law.

In the federal system, the trial courts are United States District Courts. In a criminal case, a defendant has the right to appeal the conviction and/or the sentence to the Circuit Court of Appeals. If the defendant loses the appeal in the Circuit Court of Appeals, the defendant may request that the United States Supreme Court consider the case.

The defendant has no right to have the Supreme Court take the case, but he or she may ask the Supreme Court to consider the case. The Supreme Court receives more than 10,000 requests for review of cases each year, but only takes 100 to 150.

How do you make an appeal?

An appeal is commenced by filing a notice of appeal in the trial court. There is a limited amount of time to do this--only 14 days in a federal criminal appeal. In federal court, the number of days a party has to file a notice of appeal varies in different types of cases, and may in some circumstances be extended. In a Florida state case, the time limit is 30 days, and cannot be extended.

It must next be determined what errors occurred at trial, and whether these errors are serious enough to warrant a new trial or other relief. The appellate lawyer will consult with the trial lawyer to get an idea of what might supply grounds for appeal, but this question cannot be fully determined until the appellate lawyer examines the record in the case.

The record consists of the documents that have been filed with the trial court, the motions and the rulings on motions, and transcripts of the trial and of any hearings that occurred. Every alleged error must be examined in context to decide whether it provides grounds for appeal.

After determining what errors potentially provide grounds to reverse the conviction or sentence, the lawyer for the appellant (the person who lost at trial and brings the appeal) writes an initial brief which explains to the appellate court the course of the trial proceedings and the facts established in the record, and sets out a legal argument relating to those facts and any part of the proceedings in which the trial judge made an error.

The opposing party, the appellee, will then write an answer brief to refute the appellant's argument, and the appellant can file a reply brief to refute arguments in the appellee's answer. There may also be an oral argument before the court.

In Florida courts, if one of the parties asks for oral argument, it is usually granted, and if neither party asks for oral argument, it usually is not ordered. In the federal appellate court, a party may ask for oral argument, but whether the court grants the request depends on whether the court, after examining the briefs, believes it needs oral argument to help in the decision-making process.

It is also common for a federal appellate court to order the parties to appear for oral argument even if neither party has asked for it. An oral argument in an appeal is not a new trial; rather it is an opportunity for the three appellate judges to ask the lawyers questions. Oral arguments last under 15 to 20 minutes per side.

After briefing and argument, the judges confer, and ultimately make their decision. There is no way to predict how long that will take. In some cases, a decision comes within a few weeks; in others, it can take a year or more.

Is it on the record?

An appeal is not a second chance to make your case--the appellant will not do any new fact-finding or enter any new orders. The appeal only examines what happened in the trial court.

The first and most important rule in appellate proceedings is that an appellate court will not consider an argument unless it is directed at an error that has been "preserved." That means the trial lawyer must have brought the error or the request to the trial judge's attention, in time for the trial judge to make the correct ruling.

A trial lawyer can accomplish this by filing a motion asking for relief, or by objecting to the trial court's action at the time it occurred, or in some similar way, as long as it is sufficient to notify the trial judge what the party asks for and why, and before it is too late for the trial judge to correct the error.

The grounds presented to the trial court for the request or objection must be the same thing that the party argues in the appeal. On rare occasions, a case may be overturned by the appeals court without proper objections in the trial court. This occurs if a fundamental right of the defendant was violated.

Objections frequently involve the admission of evidence or testimony. For example, if the police search a person or property without a search warrant, the evidence gathered during the search may be inadmissible.

To keep it out, the defendant's trial lawyer may file a motion before trial asking the trial judge to prevent the prosecutor from using evidence obtained during the search. Or the trial lawyer may object during trial, at the time the prosecution offers the evidence.

But if the trial lawyer waits until after the evidence has been admitted and then asks for a new trial, it's too late. The appellate court will not reverse a conviction and grant a new trial.


If you have been convicted of a crime, you have only a short time to file your appeal. Appellate practice is very specialized. Because of the complexity of this area of practice, you want experienced representation from a law firm that knows the state and federal appellate courts, such as the Law Offices of Horwitz & Citro, P.A., in Orlando.

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