Everybody Gets at Least One Appeal
Video Transcribed: What is the difference between a direct appeal and post-conviction relief? I’m an attorney in Tulsa, Okla, James Wirth, and that’s the question that’s brought to my attention today. And a direct appeal means you’re going through the regular process, everything in order. So it’s for a criminal case that’s in the state of Oklahoma.
If you are convicted, you have one appeal of right, meaning that you cannot be denied an opportunity to have an appeal. Everybody gets at least one appeal, and that’s your one appeal of right, and that’s your direct appeal.
So within 10 days of being convicted and that judgment and sentence are entered, you need to file a notice of intent to appeal. And then you need to perfect that filing of the appeal through a petition in error, designation of record, and like documents to the Oklahoma Court of Criminal Appeals.
That is your direct appeal when it’s done timely directly after your conviction. If that appeal is not successful, at that point, you have a final conviction. You don’t have a final and appealed conviction until you’ve exhausted your direct appeals. But that doesn’t mean all appeals because there’s another type of appeal, and it would be an indirect appeal as opposed to a direct appeal, but it’s post-conviction relief.
And under Oklahoma law, you do get an opportunity to do one of those. But the items that you already addressed in your direct appeal are for the most part waived when you do your post-conviction. So the idea is, post-conviction is mostly for when new evidence is discovered.
Or certain issues that can be attacked on collateral review or collaterally attached can be done on post-conviction review. And there’s no set timeframe when you can file your post-conviction under Oklahoma law. It’s essentially when that new evidence comes up, that’s when you need to file that. So they are different in that respect, their difference in what you can raise. When you do a direct appeal, you’re relegated pretty much to what’s in the record.
The same thing for the post-conviction relief, but also a lot of things that have already been previously raised in your direct appeal are waived as well. So as an appellate practitioner, when we’re doing post-conviction relief, if we have to raise the same issues that were done on the direct appeal, we need to have some argument that there was ineffective assistance of counsel, which is a new issue to be raised on post-conviction.
And then that ineffective assistance of counsel was related to some errors that were addressing the direct appeal, but not fully addressed, and that can be a way to incorporate those in post-conviction.
It can be complicated though. If you’re dealing with a direct appeal or an indirect post-conviction relief filing, you’re going to want to talk to an attorney privately, confidentially about that. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.
