You can appeal a conviction twice – if you have been convicted, successful on appeal, retried, and convicted again, you can file a second appeal based on errors made in the second trial or you can file a PCR action based on mistakes made by the trial lawyer.
You can appeal a conviction as many times as it takes – when a criminal conviction is reversed based on legal error, the process starts over again. The defendant is given a new trial, and it is as if the first trial never happened.
When the court makes mistakes again in the second trial (or third, fourth, fifth, or sixth), the Court of Appeals will consider the appeal again, and reverse the conviction again if the court again makes mistakes.
Below, we will take a look at two cases where a defendant appealed their conviction twice (or four times, in the case of Curtis Flowers).
How many times should you appeal a conviction? As many times as it takes, and, if the appeal is denied, you can then file a post-conviction relief action asking the court to reverse the conviction based on ineffective assistance of counsel.
Can You Appeal a Conviction Twice?
You can appeal a conviction twice, four times, or as many times as it takes to get an acquittal or dismissal.
A direct appeal to the SC Court of Appeals must be based on legal errors made by the judge during trial. For example, when:
- The defense objects to inadmissible evidence and the court overrules the objection and allows the evidence to come in,
- The defense objects to an incorrect jury instruction and the court overrules the objection and gives the jury instruction anyway,
- The defense requests an appropriate jury instruction and the court refuses to give the jury instruction, or
- The defense makes a motion to exclude inadmissible evidence and the court lets it in anyway.
When there was no legal error made by the court, the defendant can still file a post-conviction relief (PCR) action that is based on ineffective assistance of counsel when the trial lawyer 1) made mistakes and 2) those mistakes affected the outcome of the trial.
Curtis Flowers Appealed his Convictions Four Times
Curtis Flowers, for example, spent nearly 23 years behind bars in Mississippi as his prosecutor repeatedly tried him for murder (and repeatedly excluded African Americans from his jury as well as other misconduct).
Flowers was convicted of murder and sentenced to death four times, and each conviction was reversed by the appellate courts. Two additional trials resulted in mistrials where the jurors could not decide as to guilt or innocence, yet his prosecutor continued to retry him again and again.
After spending nearly 23 years in prison for a crime that he most likely did not commit, he filed a lawsuit against Montgomery County District Attorney Doug Evans and three investigators from his office for alleged misconduct in Flowers’ case, including allegations that the prosecutor’s office pressured witnesses to lie in their testimony against Flowers and ignored other possible suspects to the crime.
Devin Johnson Appealed his SC Conviction Twice on the Same Grounds
In State v. Johnson, decided on November 9, 2022, the SC Court of Appeals reversed a murder conviction because the trial court gave a jury instruction on accomplice liability, or “the hand of one is the hand of all,” when there was zero evidence that an accomplice even existed.
What’s particularly striking about this case is that this is not only the second time that Johnson has appealed a conviction for the murder, but the second appeal is based on the same grounds as the first appeal.
After the Court of Appeals said to the prosecutor and judge in the first trial, “you cannot instruct jurors on accomplice liability when there is no accomplice,” the same solicitor’s office and the same judge did the same thing in Johnson’s retrial, and the court again gave a jury instruction on accomplice liability when there was zero evidence that an accomplice existed.
Without comment on how or why the solicitor’s office and judge ignored their first appellate opinion, the Court of Appeals once again reversed the murder conviction and explained the law on accomplice liability in SC…
What Happens to Johnson Now?
Johnson’s murder conviction has, again, been reversed by the Court of Appeals, and Johnson will be returned to Charleston County to await retrial. The Ninth Circuit Solicitor’s Office must now decide if they are going to retry Johnson a third time, make a plea offer, or dismiss his case.
In the last trial, although the jury convicted Johnson of murder, they also acquitted him of an accompanying charge of possession of a weapon during a violent crime. This means that, if the State decides to try his case a third time, he cannot be charged with possession of a weapon during a violent crime because it is barred by double jeopardy.
Small consolation, but the absence of the additional charge could make a difference in Johnson’s retrial, and you must wonder:
- If the jurors acquitted Johnson of possession of a weapon during the murder because they believed someone else (an accomplice) fired the weapon, and
- The Court of Appeals has twice held that there was no evidence of an accomplice, then
- How can Johnson be guilty of murder?
If you have been charged with a crime in SC, if you have been convicted of a crime and need help filing your appeal, or if you won an appeal and need help retrying your case, call now at 843-353-3449 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.