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What’s the difference between a criminal appeal and a PCR (post-conviction relief) action?
If you have been convicted after a criminal trial – especially if you have just been sentenced to prison time after a conviction, the crushing sense of hopelessness and despair you are experiencing can be difficult for others to imagine. For many people, it feels like their life is over as they stumble out the back door of the courtroom, led by sheriff’s deputies with handcuffs on their wrists.
For many, however, it’s not the end of the road.
Depending on what happened before and during the trial, you may have at least two options to keep fighting: 1) a direct criminal appeal to the SC Court of Appeals or 2) a PCR action in the circuit court.
Although “post-conviction relief” sounds a bit like a criminal appeal, it means something different. A PCR is a “collateral” post-conviction action that you can file to challenge your conviction in addition to a direct appeal.
What’s the difference between the two?
A criminal appeal is usually filed with the SC Court of Appeals after a criminal conviction, although in some cases a direct appeal can be filed with the SC Supreme Court.
How does the criminal appeal process work?
In most cases, you must file a “notice of appeal” within ten days of your conviction. Some exceptions extend the time limit (when a post-trial motion is filed in the trial court, for example), and there are special requirements for where the notice must be filed and who must be served with the notice, so it is best to get your attorney to assist you in filing the notice of appeal.
After filing the notice of appeal, there will be numerous filing requirements and deadlines that include:
Regardless of the SC Court of Appeal’s decision, the losing party can appeal to the SC Supreme Court by “requesting certiorari.” There is no absolute right to appeal to the SC Supreme Court, so the parties must “ask permission.”
If the defendant loses in the SC Supreme Court, there are additional options that might be available to them, including 1) appealing to the US Supreme Court if the case involves a federal issue, or 2) filing for state-review habeas relief in the federal district court if the case involves a violation of a clearly established federal right.
A “direct appeal” to the SC Court of Appeals requires an error made by the trial court – for example, if your trial lawyer makes a motion, the trial court denies that motion, and the denial of the motion was grounds for reversal of the conviction, you have a “direct appeal issue.”
What happens if your trial lawyer doesn’t make the motion, however, or doesn’t object to inadmissible testimony or evidence?
A PCR, or post-conviction relief action, is sometimes called a “collateral” action because it is filed in SC’s Court of Common Pleas, or civil court.
To win your PCR (in most cases), you must prove that there was 1) ineffective assistance of counsel and 2) prejudice resulting from the attorney’s mistake (but for the attorney’s mistake, there is a reasonable probability the outcome would have been different).
For example, when you could not appeal a trial error because your trial lawyer didn’t make the motion or didn’t make the objection, you can file a PCR action based on your trial lawyer’s failure to make the motion or objection, and your conviction may be reversed if you can show that the outcome would have been different if your trial lawyer had made the motion or objection.
Either side can appeal the result of the PCR hearing to the SC Supreme Court, and, in some cases, the defendant may be able to file a state-court review habeas action in federal court if their PCR is denied.
A PCR can be based on either the trial lawyer’s mistakes or the appeal lawyer’s mistakes, and the defendant has one year from the date of conviction or the date of the final entry of the judgment on appeal to file the PCR, so most defendants will 1) file the direct appeal first, and then 2) file the PCR action if the direct appeal fails.
State v. Morales, decided earlier this week by the SC Supreme Court, illustrates the difference between PCRs and direct appeals – and why PCR actions are necessary to ensure fairness in criminal trials and appellate review.
Morales was convicted of CSC with a minor and sentenced to 40 years in prison.
On appeal, he argued that a second alleged victim should not have been permitted to testify about uncharged offenses at his trial. When the State called the witness at trial, however, Morales’ attorney did not object to the testimony.
Although the trial lawyer may have objected to the testimony earlier in the proceedings, any objections made were not preserved for appeal because:
Although it is unclear whether the SC Supreme Court would have granted Morales’ appeal if the trial attorney had preserved the issues for appeal, it is possible – the Court of Appeals reversed the conviction. The Supreme Court reversed the Court of Appeals and denied the appeal, however, because the trial attorney did not preserve the issues at trial.
What’s next for Morales?
He can most likely file a PCR action now based on the mistakes made by his attorney at trial (and any mistakes made by his appellate attorney).
If it was ineffective assistance of counsel for his attorney to fail to make a contemporaneous objection to the testimony, if the testimony was inadmissible under State v. Perry, and if there is a reasonable probability that the outcome would have been different without the inadmissible testimony, Morales’ conviction can be reversed, and he can be granted a new trial (without the inadmissible testimony).
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.
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