Post Conviction and Criminal Appeals

Post Conviction and Criminal Appeals

In Las Vegas, a conviction at the end of the trial does not end the justice process. If you are convicted of a felony or gross-misdemeanor crime in Nevada, you are entitled to an appeal. You must act quickly though because your attorney only has 30 days in which to file the motions for the appeal.

It is also important to check to see whether or not your trial attorney does appeals. Some trial attorneys do not handle appeals so it would be a good idea to get an appeals attorney on standby in case you get convicted at trial.

Las Vegas Criminal Appeals Attorney

Joel Mann has extensive experience with criminal appeals and writs. He worked for the Clark County District Attorney’s Office where he focused on appeals and petitions for post-conviction writs of habeas corpus. He has successfully had appeals reversed, reduced, or remanded back to the lower court.

By retaining Joel Mann for your appeal, you will receive an advocate with a wealth of experience, including published opinions and extensive research skills. He also has experience arguing before the Nevada Supreme Court. Listed below are some recent published opinions from Joel Mann:


Criminal Appeals Information Center


What is an Appeal?

An appeal is a request to a higher court to review and reverse the decision of the lower court. An appeal is asking the higher court to determine that the trial court committed some sort of error that warrants relief from the conviction. Because post-trial motions requesting trial courts to either reverse the judgment or order a new trial are seldom successful, the defendant’s only hope of overturning the trial court’s decision is to appeal.

The defendant may challenge the conviction itself, decisions during the trial, rulings on pre-trial motions or may appeal the trial court’s sentencing decision.

An appeal is based on the record and transcripts created in the lower court. There is no new evidence presented and no new testimony heard. The Appellate Court will make its decision based on what happened in the lower court and on arguments before the Appellate Court. In an appeal, the court is only looking for procedural and constitutional errors that occurred during the trial.

In Nevada, the Nevada Supreme Court is the only appellate court. The Nevada Supreme Court reviews all appeals for the state of Nevada so it has an extremely large caseload. In order to handle this large caseload, the Court has established an expedited process for some criminal appeals.

Those criminal convictions that do not carry a life sentence must appeal using the Fast Track process. This is an appeal limited to 15 pages in which the appellant lays out the pertinent issues before the Court. If needed, the Court will ask the parties to expand on the briefs and go further in depth on some issues.

If a Defendant is convicted and sentenced to a life sentence, an appellant must file a full brief and is not eligible to file an abbreviated brief in the Fast Track process.

The process of writing an appeal is lengthy and detailed. An attorney must go through every legal document filed, the testimony of every witness and every ruling the trial judge made in the jury trial. This process is necessary in order to determine every significant issue that could be the basis for an appeal. Those issues that are not raised in an appeal may be forever waived by the Defendant.  So it is important that you have an experienced appellate attorney who knows how to spot those issues that are important for appeal.  If you do not address all the issues you may never be allowed to raise those issues again.


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What issues can the Criminal Appellate Court hear?

An Appellate Court, like the Nevada Supreme Court, decides questions of law, such as whether the district court judge applied the law correctly in the case. The Appellate Court does not hear testimony or retry the cases. An appeal from a district court judgment is decided based on the written record from the original trial or court proceeding. Issues brought to an Appellate Court for review commonly include claims such as:

  • Incorrect rulings on admissibility of evidence
  • Incorrect application of a law
  • Incorrect application of a regulation
  • Improper jury instructions
  • Insufficient evidence to support the verdict

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The Criminal Appeals Process

To begin the appeals process, a written notice of appeal is filed with the clerk of the court in which the proceeding took place. In Nevada, a person must file a notice of appeal with the District Court Clerk within 30 days of the conclusion of the underlying case.

Once a notice of appeal is filed, transcripts of the underlying proceedings are prepared. All parties are notified once the record has been filed with the Appellate Court.

From the date the record was filed, the appellate has a specified period of time within which to file an opening brief. In Nevada, the time is typically 120 days.

A “brief” is a written argument that an attorney prepares for the court. It details the issues raised by the appellant, including challenges to the District Court ruling or findings, and refers to applicable statutes (laws) and previous case decisions to support a position.

The respondent is then given an opportunity to file an answering brief in response and then the opposing side may file a reply brief.

On some occasions, a panel of justices will hear oral arguments. A member of the panel will then prepare and file and opinion or decision, which is a written statement of the Court’s decision.


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What is a Writ?

The word “writ” traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. In most modern American jurisdictions, a “writ” is an order from a higher court to a lower court or to a government official such as a prison warden.

Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. Writs, like appeals, are complex and require an in-depth review of the record. Defendants facing situations where they may be entitled to take a writ should consult counsel.


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What is a Writ of Habeas Corpus?

Defendants who want to challenge the legality of their imprisonment – or the conditions in which they are being imprisoned – may seek help from a court by filing an application known as a writ of habeas corpus.

A writ of habeas corpus (literally means “produce the body”) is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order.

Many state constitutions provide for writs of habeas corpus, as does the United States Constitution which specifically forbids the government from suspending writ proceedings except under special circumstances.

In short, the writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions and thereby ensures that people in this county will not be held for long times in prison in violation of their rights.


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What is the difference between a writ and an appeal?

Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may draft a writ to contest a point that the defendant is not entitled to raise on appeal.

As a general rule, writs apply to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense). Post-conviction writs are the only time a Defendant has to raise the issue that he did not receive his 6th amendment right to effective assistance of counsel.  A writ is the proper place to claim that your counsel was ineffective and did not exercise his reasonable duty as an attorney. Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

  • The defense mistakenly did not lodge a timely objection at the time of the alleged injustice.
  • A final judgment has not been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
  • The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court)
  • The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one.) Filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.

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How a lawyer can help

An appeal or a post-conviction writ is a very technical process.  You want an experienced attorney who knows the rules of procedures and can properly file the correct legal documents.  Without an experienced appellate attorney, you may be forever waiving your right to raise significant issues in your defense.  If you have been convicted of a crime, time is a critical factor in your appeal.  You must speak with a qualified criminal defense appellate attorney immediately to make sure that all your rights are addressed and preserved.  An attorney can walk you through the process and find those errors that you may not have known even existed.  The Law Office of Joel M. Mann has handled many appeals and has been successful in getting their clients some relief.  Call Joel Mann today for a free consultation to discuss your case and what rights you have.


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Resources

Court of Appeals for Nevada – Provides updates on oral arguments and the Court of Appeals Schedule.

Nevada Rules of Appellate Procedure – Official rules of Appellate procedure for the state of Nevada. Includes the recent February 2010 amendments.


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Law Office of Joel M. Mann | Nevada Appeals and Post-Conviction Motions

If you are interested in reversing a criminal charge against yourself or a loved one, we encourage you to contact us now at (702) 474-6266 for a free/no obligation consultation during which we can discuss the possibility of success and the process involved. Joel Mann is an experienced Nevada criminal defense attorney who has extensive knowledge writing, filing, and litigating criminal appeals.