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Appeals and Post-Conviction Relief in Criminal Cases

If you are convicted in a criminal case in Nevada, you have right to appeal. You also may be able to file for other post-conviction relief. At The Gersten Law Firm, we have substantial experience in appealing criminal cases and pursuing post-conviction relief.

Las Vegas criminal defense attorney Joseph Gersten holds a Master of Forensic Sciences degree. He worked for the Intelligence Division of the U.S. Secret Service, as well as the Office of Criminal Investigations at the U.S. Food and Drug Administration. Attorney Gersten will put his extensive criminal law experience and knowledge to work in assessing the full circumstances and evaluating options and opportunities for appeal or post-conviction applications. When you turn to our firm, you work directly with Joe, not an associate, paralegal, or case worker. Call 702.857.8777 or complete our online form to schedule a free initial consultation and case evaluation.

Appeals and Post-Conviction Processes

Following a criminal conviction or guilty plea, there are two different ways to seek review of your case. The levels are:

  • Appeal
  • Post-conviction motions

Appeal and post-conviction procedures are available in both federal and state courts.

Appeal of a Conviction

Defendants in federal and state courts have the right to appeal from a conviction.

For state criminal convictions, felony and gross misdemeanor cases may be appealed to the Nevada Court of Appeals or Nevada Supreme Court, depending on the nature of the charge. To pursue this appeal, a defendant must file a Notice of Appeal with the district court clerk within thirty (30) days of the date the judgment is entered.

Misdemeanor cases heard by a justice court may be appealed to the county district court. In those cases, the Notice of Appeal must be filed within ten (10) days of the date the judgment is entered.

For convictions in a federal district court, the appeal is to the United States Court of Appeals for the Ninth Circuit. The Notice of Appeal must be filed within ten (10) days of the date of judgment.

Filing an appeal does not entitle you to a new trial. The appellate court will only review the record in the case, consider the reasons asserted in the appeal, and make a determination on the merit of the appeal. No new evidence or testimony can be introduced.

Appeals address only errors that occurred in the trial process. The issues that can be raised in an appeal are limited and vary, depending on the circumstances. Generally, they include:

  • Judicial errors in rulings, evidence admission, or jury instructions
  • Prosecutorial misconduct, like withholding evidence
  • Insufficient evidence to support the verdict
  • Improper sentence or punishment

The court hearing the appeal has several options in determining the outcome. In some cases, the appellate court will overturn the judgment and acquit the defendant. In other cases, the appellate court may order a new trial or new sentencing hearing in the trial court. If the appellate court finds that the trial court acted properly in all respects, the appellate court will affirm the judgment, and the conviction will stand.

If your initial appeal is filed with the Nevada Court of Appeals, and the conviction is affirmed, you can file a request with the Nevada Supreme Court for an additional appeal. That appeal is not by right and is infrequently granted by the Nevada Supreme Court. In the additional appeal is requested, and that request is denied, the Nevada Court of Appeals decision stands.

The grounds for appealing federal convictions are similar to those for state convictions. The difference is that the appeal is filed with the United States Court of Appeals for the Ninth Circuit. If a conviction is affirmed by the Ninth Circuit Court of Appeals, you can file a request for rehearing with the Ninth Circuit, or request the United States Supreme Court to accept a further appeal. The appeal to the United States Supreme Court is not by right and is rarely granted.

In Nevada, the appeal by-right process generally takes anywhere from six (6) to twenty-four (24) months to complete, but it can take longer, depending on the circumstances.

Appeal from a Guilty Plea

An appeal from a guilty plea is possible, but the grounds for making one are very limited. Generally, the only basis for appealing after entering a plea is incompetent counsel or your own mental incompetence. An alternative available before sentencing may be a motion to vacate a plea or motion to vacate a conviction. After sentencing, filing a writ of habeas corpus could be used to challenge a guilty plea in some situations.

Post-Conviction Relief

There are various reasons that post-conviction motions can be filed. The most common are a motion for a new trial and a writ of habeas corpus. There are specific requirements that must be met in both situations. Denial of post-conviction relief motions can be appealed, in both federal and state court.

Motion for a New Trial

Following conviction in trial court, a defendant can file a motion for new trial with the court that tried the case. Courts rarely grant these motions unless the defendant can show:

  • Ineffective counsel at trial
  • Prosecutorial misconduct
  • Judicial error
  • Jury misconduct
  • Perjury

A motion for a new trial must be made seven (7) days after judgment is entered, unless there is newly discovered evidence. In the case of new evidence, a motion for a new trial can be filed within two (2) years after the verdict.

Motion to Withdraw a Guilty Plea

Generally, under Nevada law, a post-trial motion to withdraw a plea of guilty, guilty but mentally ill, or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended.

However, in May 2017, a new Nevada law went into effect permitting — under specific circumstances — a motion to withdraw a plea of guilty, guilty but mentally ill, or nolo contendre after the sentence is imposed or after imposition of sentence has been suspended. The new law applies only to motions pending on or after June 12, 2014. The motion will be permitted as a post-trial motion when:

  • No prior motion to withdraw the plea or post-conviction writ of habeas corpus was filed.
  • The motion is filed within one (1) year of the date of conviction, unless person can demonstrate by facts that there was an obstacle to filing.
  • The person is not incarcerated when the motion is filed.
  • The motion is not barred because of an unreasonable delay in filing the motion. The unreasonable delay requirement is referred to as the doctrine of laches. A motion filed more than five (5) years after conviction gives rise to a rebuttable presumption that it is barred by the doctrine of laches.

A person is not entitled to court-appointed counsel for the purpose of filing a motion to withdraw a guilty plea under this law.

Writ of Habeas Corpus

Other than a motion for a new trial, post-conviction relief generally comes after all appeals have been denied. The post-conviction motions are heard by the same judge who heard your case at trial. Because of that, they are not often granted.

A post-conviction petition is not a new trial. However, depending on the allegations, the court may hold a hearing. Denial of post-conviction relief can be appealed to the Nevada Court of Appeals or Nevada Supreme Court, the same as the original conviction.

For Nevada state law convictions, if you lose your state appeals, you have one (1) year to file a writ of habeas corpus in district court. If you did not file an appeal, you can file a writ of habeas corpus within one (1) year of the date the right to appeal expired. In some circumstances, the court can extend the time if cause is shown.

A writ of habeas corpus is essentially a claim that a prisoner is being unlawfully held. When a writ of habeas corpus is filed, new evidence not raised at trial can be included. Through a writ, a defendant can challenge the conviction and imprisonment by raising errors that occurred during trial.

In Nevada, there are specific conditions under which you can file a writ of habeas corpus. You must be incarcerated and have no other way to challenge your conviction. The statute includes nine (9) different reasons for a habeas petition can assert. Generally, they include:

  • Denial of constitutional rights in conviction or sentencing
  • Constitutionality of the conditions of incarceration
  • Prosecutorial misconduct
  • Incompetent counsel at trial
  • Availability of new evidence or U.S. Supreme Court recognition of a new constitutional right

A writ of habeas corpus is an extraordinary remedy. Few habeas petitions are granted in Nevada. Most often, they are granted in death penalty cases in federal rather than state court.

Habeas corpus petitions can also be filed in federal court, if your conviction or custody violated federal law or your constitutional rights. A violation of Nevada state law is insufficient to support a federal habeas corpus petition, which addresses the legality of a prisoner's detention. It does not involve an inquiry into the defendant's guilt or innocence.

Writ of Coram Nobis

Nevada courts permit criminal defendants to file a petition referred to as a writ of coram nobis. Because the writ is based on common law rather than on statute, there is no time limitation for filing a writ of coram nobis. However, the circumstances and basis for a post-conviction coram nobis petition are very limited.

First, the writ can only be filed when the defendant is no longer in custody. In addition, the writ can only assert a factual error outside the record at trial, unknown by the court during trial, and not withheld by the defendant, that would have prevented the defendant from being convicted. As such, a writ of coram nobis cannot assert a claim like ineffective assistance of counsel, which is a legal rather than factual issue. Newly-discovered evidence also does not justify a writ of coram nobis, because the evidence would not have precluded judgment from being entered at the trial. An example of the type of fact that may support a writ of coram nobis is a fact relating to personal jurisdiction over the defendant.

A writ of coram nobis can be filed in either state or federal court. It is filed with the court that originally heard the case. If the conviction was a state offense, the writ is filed in state court. For federal offenses, coram nobis petitions are filed in federal court.

Writs of coram nobis are very limited and granted rarely; however, there are circumstances when it is appropriate to file one. The Gersten Law Firm has experience filing coram nobis petitions. Attorney Gersten knows the laws and can evaluate your case to determine whether filing a writ of coram nobis is an option.

Schedule a Free Consultation with a Las Vegas Criminal Appeals and Post-Conviction Lawyer

Analyzing a case and surrounding circumstances to determine the best appeal or post-conviction route to pursue is a complex task, requiring a skilled criminal defense attorney with the right kind of experience. Las Vegas attorney Joseph Gersten has that experience and a keenly analytical mind. If you were convicted of a crime in federal or state court in Nevada and looking for assistance in evaluating your options, call 702.857.8777 or complete our online form to schedule an appointment. The Gersten Firm serves clients in Las Vegas, Henderson, and elsewhere in Clark County. Your initial consultation is free-of-charge.

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The Gersten Law Firm PLLC
9680 W Tropicana Avenue
Ste 120
Las Vegas, NV 89147
Phone: (702) 857-8777