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Law & Schriener, LLC Aug. 10, 2023

What Issues Can Be Raised In My Direct Appeal?

The issues that can be raised in a direct appeal are primarily limited to what is called trial court error. Specifically, issues that can be raised include, but not limited to, the composition of the jury, the admission of evidence, prosecutorial misconduct, jury instructions, and sentencing.

In both state and federal court, your trial lawyer plays a very important role in preserving the record. Preserving the record means making objections at the proper time. The appellate courts want the trial judge to have the first crack at any type of error. In both federal and state, the trial attorney must raise errors as soon as they arise. In Missouri state court, objections must also be included in a motion for a new trial. Although an issue that has not been properly preserved can be raised on appeal, the court of appeals may not review it or review it under a much higher standard.

The court of appeals will review unpreserved issues for plain error. For issues that have been preserved, there are different standards of review that the court of appeals will apply. For example, the court of appeals will review the trial court’s evidentiary rulings for abuse of discretion. A trial lawyer’s failure to properly preserve issues can limit the appellate lawyer’s effectiveness on appeal.

What Is The Appeals Process In Missouri State Court?

In Missouri state court, you have 10 days to file a notice of appeal once you are sentenced. That notice of appeal is going to be filed in the circuit court and requires a $70 filing fee, which is paid to the circuit clerk. If you miss the 10-day deadline, not all hope is lost. Missouri does allow for the filing of a late notice of appeal within one year of a sentence. However, it is very important not to file a late notice of appeal without permission to do so. If you do, then the appellate court will dismiss your appeal for lack of jurisdiction. To properly file a late notice of appeal, you would need to request a special order from the Missouri Court of Appeals. In your motion, you must give the appellate court the reasons as to why your notice of appeal was late. The Missouri Court of Appeals will generally grant that request, reopen the time for filing an appeal, and give you 10 days to get the notice of appeal filed with the filing fee.

If you can’t afford the filing fee, then you can file as a poor person. Once the notice gets filed and either the filing fee is paid or the motion to proceed as a poor person gets granted, the notice goes to the Missouri Court of Appeals. There are three Missouri Courts of Appeal (Eastern, Western and Southern). The appeals system in Missouri is supposed to be a unitary court of appeals, however, the appellate courts have made decisions that conflict with each other.

From the date that the appeal is filed in the circuit court, the appellant has 90 days to file a record on appeal. A record on appeal consists of two elements. The first is the legal file, which consists of documents from the case that are relevant to the appeal. The second element is the trial transcript, sentencing transcript and any other transcribed hearings.

If no record on appeal or motion for extension of time is filed within 90 days, then your case will be put on a dismissal docket. You will be warned that you have 15 days to file the record on appeal before your case is dismissed. Once the record on appeal is filed and complete, the appellant will have 60 days to file the initial brief.

The initial brief is generally going to involve issues of trial court error, such as evidence that was admitted or excluded, testimony that shouldn’t have come in but did anyway, jury issues and sentencing issues. Once a criminal case in Missouri goes up to the court of appeals, the respondent (the State of Missouri) is going to be represented by the Missouri Attorney General’s office (except for misdemeanor convictions in which the State is represented by the prosecuting attorney). The respondent will have 30 days to file its brief. Extensions of time to file briefs are common on both sides, depending on the length or complexity of the case. Once the respondent files its brief, the appellant has an additional 15 days to file their reply brief.

Although not mandatory, appellate counsel should file a reply brief to address any factual or legal errors in the respondent’s brief. Also, given that the reply brief is shorter than the initial brief, it may be the first brief that is reviewed by an appellate judge.

In addition to briefing the case, the appellate court may hold oral argument on the case. Oral arguments are not necessarily automatically granted. Appellants may receive a notice that the case will be submitted on the briefs. If that happens you may request that the case be placed on the oral argument calendar. The appellate court automatically places some cases on the oral argument docket.

Depending on the complexity of the case, oral argument last somewhere between 15 and 20 minutes per side. The appellant argues first and reserves time to rebut the respondent’s argument. The respondent argues next. Finally, the appellant presents rebuttal. After oral argument, the appellate court will issue a decision. The length of time for the decision varies from case to case. If the court of appeals doesn’t find any of your arguments on direct appeal persuasive and affirms the trial court’s rulings, then you have 15 additional days to file a motion for rehearing in the court of appeals and/or an application to transfer to Missouri Supreme Court.

If you file a motion for rehearing and an application for transfer from the court of appeals to the Missouri Supreme Court and it is denied, then you have an additional 15 days to file an application to transfer from the court of appeals to the Missouri Supreme Court. To file an application to transfer directly in the Missouri Supreme Court, the appellant must have filed and been denied and application for transfer in the court of appeals. If the Missouri Supreme Court denies the application for transfer, the direct appeals process in Missouri ends. The Missouri Court of Appeals would issue a mandate about 15 or 20 days later stating that they no longer have jurisdiction in the case and that the appeals process has come to an end. However, you would still have 90 days within which to challenge your conviction in the United States Supreme Court. If the motion for application to transfer is granted in either the Missouri Court of Appeals or Missouri Supreme Court then briefing process starts over again and oral argument may be held.

Finally, there are five types of cases that the Missouri Supreme Court has exclusive jurisdiction over which include the validity of a United States statute or treaty, validity of a Missouri statute or constitutional provision and imposition of the death penalty.

For more information on Issues Raised In A Direct Appeal In Missouri, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.


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