Appeals in Florida, Appellate lawyer

It is all about getting results on appeal for you, the client.

Hear what Jon said when we won his appeal:

 

Have you ever seen an appeals lawyer actually argue and win in the Supreme Court of Florida?

Here is the video:

https://thefloridachannel.org/videos/11315-florida-supreme-court-oral-arguments-state-of-florida-v-donna-horwitz-sc15-348/

My argument starts at 17:27

Supreme Court win on appeal

Here is the Florida Supreme Court opinion:

Supreme Court Horwitz opinion

Grey got a first degree murder with a firearm conviction overturned.  We also helped expand Miranda rights for all Floridians.  This was a case of first impression at the Florida Supreme Court.  Pre-arrest pre-Miranda silence cannot be used against the defendant unless they testify at trial.  This is now settled Florida constitutional law.  Even if they testify at trial, there is still an evidentiary 90.403 balancing test to see if the silence is admissible. 

 

How long do I have to file an appeal?  What is an appeal?

 

Everyone wants the best appeal lawyer in Florida.  Legally, no attorney can say they are the best appellate attorney in Florida.  The issue is usually can you afford it?  There is a short video here on how much will a Florida appeal cost and how long will the appeal take.  These are two of the top questions I get asked.  Every case is different.  Some records are short because it was a one day trial.  Other records may be weeks or months long.  There may be several issues to raise on appeal or only one issue.  Generally, the longer the trial record and more issues, the more expensive it will be. 

 

Here’s a video on what types of appeals there are in Florida and when you can appeal:

 

Here is a video on the appellate process and appeal timeline in Florida

Straight Talk on Appeals

 

Should You Ask A Higher Court to Review Your Case?

 

by Grey Tesh, Esq.

 

              You lost at trial.         

            You’re heart-broken.

            Devastated

            You can’t believe it.

            Justice wasn’t done.

            You feel betrayed by the system.

            It’s all over.

            You have no choice but to submit to the verdict.

            No choice.

            It’s over . . .

            But wait a minute.

            A spark of hope appears:

            Appeal.           

            You can still appeal.

            You can ask a panel of more powerful judges to review your case for mistakes made by the trial judge, or mistakes made by the opposing side, or even mistakes made by your own lawyer.

            Maybe the trial judge was biased against you.

            Or maybe the attorney for the other side said things to the jury, or argued to the judge, in ways the law doesn’t allow.

            Or maybe your own attorney wasn’t sufficiently prepared for trial.

            Perhaps your attorney failed to  properly investigate the facts of the case, or perhaps he failed to adequately research the relevant law.

            Yes, you can appeal.

            You’re down but not out.

            It’s not over until it’s over.

            It’s not over until the fat lady sings.

            That once tiny spark has now evolved into a flame of hope.

Now, here’s the reality:

            Winning a case on appeal is extraordinarily difficult; it’s an arduous challenge, and one that should not be taken lightly.

            As any honest and informed attorney will tell you, the overwhelming majority of appeals are denied, very often incomprehensibly, without any explanation.

            In fact, the power of appellate judges is so great, lawyers have grown accustomed to the conventional, depressing, lop-sided notion that ninety-percent of appeals, or more, are denied.

            In other words, the panel of three judges that review a case on appeal find that the trial judge was correct in his rulings almost all of the time.

            But if you think about it, this doesn’t make sense. 

            Judges are nothing more than former lawyers who have been elected or appointed to their judicial positions.

            If one can fairly conclude that, as fallible human beings, lawyers are correct, generally, about half the time, how is it that once a lawyer becomes a judge, his or her decisions are correct ninety percent or more of the time?

            This is the unspoken reality, and great power, of judges; the ability to make decisions about other peoples’ lives with less than perfect accountability for the right or wrong of their decisions.

            So the victories on appeal about which you read in the newspaper or on the Internet, or hear about on the radio or television, are there, not only because of their sensational subjects, but because, in fact, reversal on appeal is such a rare and exotic animal.

 

So then, why appeal?

            You should appeal not just because one chance out of ten is better than one chance in a thousand, or one chance in ten-thousand, or no chance at all.

            You should appeal because there is no great reward without great risk.

            You should appeal because the playing field wasn’t level; the financial and human resources were so heavily weighted in favor of the prosecution in a criminal case or the insurance company in an injury case as to render the verdict unfair.

            You should appeal because every great judicial victory in history is the result of an appeal, and often multiple appeals.

            For example, a person can lose at trial, and appeal to the state appellate court. The state appellate court may deny the appeal, and the person may choose to further appeal, this time to the state supreme court. The state supreme court may deny the appeal, and the person may then decide to appeal to the United States Supreme Court.

            So when the United States Supreme Court endorses the argument of a challenger, that final ruling follows months, sometimes years, of lower courts, (filled with judges who have many decades of experience), rejecting the same argument.

            While very few cases reach the United States Supreme Court, the general process is the same.

            A person who loses at trial, concluding that his or her trial was unfair in some important respect, brings his grievance to a higher, more powerful court, a court whose members do nothing but review such appeals.

            But take careful note:

            Great injustice requires great courage.

            Nevertheless, that courage to continue fighting, despite the wounds inflicted by the enemy, will arise within you if the injustice you suffered is so great, so painful, so intolerable, it drives you to look beyond the discouraging statistics and practical-minded pessimism, to a day of vindication and redemption.

Every capable defense attorney is really a prosecutor: a prosecutor of the police, of governmental attorneys, and of judges, making sure that, in pursuit of their respective agendas, those empowered by the law themselves follow the law.

            Because, remember this:

            No one is above the law.

            Not police officers.

            Not prosecutors.

            Not even judges.

            If common people like you are expected to follow the law, then even more so, those elected and appointed to enforce the law (often with highly enviable salaries and job security) are expected to uphold the rules by which the law exists.

            In fact, although you might find it hard to believe, serious errors by police, prosecutors, and judges are really quite commonplace. 

            This is true for a number of reasons.

            First of all, an inescapable part of being human, for all of us, is making mistakes.

            And police officers, prosecutors, and judges are only human.

            But beyond this universal condition, many of those who have been given the power to enforce the law, like common people, suffer from bias or prejudice of one kind or another.

            It may be a consciously racial, ethnic, or religious bias.

            But more simply, it may be an unconscious bias, common among prosecutors and judges alike, against those who are merely accused, and against those who are poor.

            Finally, it is an indisputable fact that people act in their own self-interest, and it is in the interest of police officers, governmental attorneys, and judges to arrest, prosecute, and convict people.

            No one in law enforcement is awarded raises, bonuses, or promotions for deciding that a person was wrongly arrested or prosecuted.

 

            Injustice can take many forms:

            The State sometimes arrests and prosecutes people who are actually innocent of the charges lodged against them.

            In arresting and prosecuting a person for committing a crime, sometimes the police officer, the prosecutor, or the judge, violates the law in a more serious way than the accused by not following the rules that govern their professional conduct.

            An officer’s failure to inform a person of his or her rights to remain silent and to be represented by an attorney, (so called, Miranda rights), is perhaps the most well-known violation.  Acts of police brutality provide another example. There are many, many others.

            Such demoralizing violations of the rules of law by those who are commissioned to enforce the law are often more serious than the illegal conduct attributed to the accused.

            When such violations are uncovered and properly documented, they provide grounds for the reversal of convictions.

            An appellate attorney who cares about his or her client will scrutinize the testimony and arguments in a trial to ferret out those violations of the law, whether committed by the judge, the prosecutor, or even the defendant’s own lawyer, that  were serious enough to cause a miscarriage of justice.

            Once finding such errors, the challenge faced by the attorney on appeal is to communicate those errors in language that is so clear, so precise, and so persuasive, the more powerful judges who review the case will feel obliged to reverse the verdict.

            When an appellate court reverses a case, a couple of things can happen.

            The case can come to an end, with the defendant winning the case.

            Alternatively, the reversal may simply cancel out the verdict of the trial court, allowing the State, if it wishes, to try the defendant again.

            But often, when the State loses an appeal, it’s desire to go through another trial in the same case becomes much weaker. It’s not just that, among prosecutors, the loss may bring about a fall in morale; often, the decision of the appellate court disqualifies some previously important if not crucial part of the Government’s strategy, without which, the Government cannot win the case.

            So when a defendant wins a case on appeal, the Government may decide to drop the case entirely, or it may decide to offer a plea bargain to the defendant as, thus creating, for the prosecution, a simpler, easier, and more painless way of ending the case.

For a successful appeal, at least one of the following five events must have taken place during your case:

            (1) The State committed major errors during trial AND your lawyer was prepared and astute enough to place objections on the record; or

            (2) The trial judge committed major errors during trial AND your lawyer was prepared and astute enough to place objections on the record; or

            (3) Your attorney failed to object or argue against improper remarks, questions, or strategy by the prosecutor; or

            (4) Your attorney failed to object to improper rulings or comments by the trial court judge; or

            (5) Your attorney failed to undertake an adequate investigation of the case by (a) deposing witnesses, (b) interviewing actual and potential witnesses, and (c) thoroughly researching the relevant law.           

Here are several examples:

            Example 1: While driving alone, you were stopped for a traffic ticket, and the police officer sees a bag of marijuana on the floor of the car in front of the passenger’s seat. When asked about it, you exercise your right to remain silent, and the officer arrests and charges you with possession of marijuana. You go to trial and lose. But your attorney failed to argue that, because the State has no evidence of previous drivers and/or passengers of the vehicle, the State could not prove that the marijuana did not belong to you.  Such circumstances provide strong grounds for appeal based upon the inadequate representation of your lawyer.

            Example 2: A stolen car is recovered, and your fingerprints are found on the steering wheel. You are arrested, tried, and convicted of grand theft auto. During trial, over your attorney’s strong objections, the judge allows the prosecutor to tell the jury you were previously convicted of stealing a car when you were a teenager. The jury finds you guilty. The issues providing you with strong grounds for appeal here are first, the misconduct of the prosecutor who the law prohibits, except under special circumstances, from telling a jury about previous offenses attributed to the defendant. The second and even more important basis of appeal is the judge’s ruling, over your attorney’s objections, allowing the prosecutor to make the improper remarks.

            Example 3: Out of curiosity, you enter what appears to be an abandoned house and, once inside, you find a watch lying on the ground. You decide to keep the watch. But someone saw you enter and leave, and later, you are arrested, charged, and convicted of burglary. Your attorney properly argues to the jury that, while the State provided evidence that you entered the house without permission, the State did not provide any evidence that you entered the house with the specific intent of taking anything. Nevertheless, the jury finds you guilty of burglary, the judge upholds the verdict, and sentences you to three years in prison.  This scenario illustrates strong grounds for appeal because to be convicted of burglary, the State must show that the accused committed a trespass with the specific intent of committing a felony, such as theft, once inside. In this example, the judge violated the rules of criminal procedure by upholding the verdict even though the State failed to prove a key element of the crime.

To help you understand the guiding principles, the examples previously given are, admittedly, somewhat simple. But as you might know, the rules of law are highly complex, and they contain many nuances and subtleties. Indeed, the rules of law are so complex and nuanced, in Florida, a lawyer must study the law for three years, and then pass a very long and difficult Bar exam, before he or she is allowed to practice law.

So this is where a good appellate attorney comes in. He or she combines a knowledge of the law with a conscientious concern that justice prevails

What do appeals cost?


Good question.

First, keep in mind, a person who is convicted of a crime who has little or no money, (especially if he was sentenced to prison, and so cannot earn money from a job) is entitled to have an attorney from the Public Defender’s office represent him, and to have other necessary costs paid by the Government.

The three costs required for litigating an appeal are (1) the fee the courts charge for filing a case; (2) the fee for producing “the record,” that is to say, the transcripts of the trial and copies of all the motions, orders, and other documents filed in the case; and (3) the cost of an attorney to represent you for the appeal.

Generally speaking, the longer the trial, the greater the cost of the appeal. Compared to, say, a two day trial, a trial that lasts for five days will require a much longer transcript, and more legal work  to review the record and research the law.

But that is not always the case.  The cost of an appeal can be affected by the number and complexity of the issues that will be argued to the appellate court.  A long trial appealing only a single issue may require much less work than a short trial in which the person convicted seeks to appeal multiple issues.

So you lost at trial. You were wrongly arrested, unfairly prosecuted, improperly sentenced. You’re in good company. Dr. Martin Luther King, Jr, Mohandas Gandhi, and many other people, some of them famous, most of them anonymous, have been the victims of such injustice.

But if you suffered an injustice, you should never give up. Because, among other things, as Dr. King said, “injustice anywhere is a threat to justice everywhere.”  So in fighting for your own vindication, you will also be fighting for others.

Keeping in mind the fact that it is extraordinarily difficult to win a case on appeal, and drawing upon courage born of the truth that was denied by your trial but that you know in heart, let your hope for a day of Justice sustain you and, appealing your case, fight for what is right.

The Pledge of Allegiance that we all recited as children closes with the promise of “liberty and justice for all.”  You are entitled to justice. You have rights to justice guaranteed to you by the United States Constitution. If those rights have been denied, whether by the misconduct of a police officer, a prosecutor, the trial judge, or even your own lawyer, then, marshal the courage that’s within you to keep fighting and, in the words of Bob Marley, “Get up, stand up. Stand up for your rights. Get up, stand up. Don’t give up the fight.”

-Grey Tesh

561-686-6886

“Law is not black or white, it’s Grey”

Grey is a Florida appeals lawyer based out of West Palm Beach, Florida.  Grey has won cases for his clients at the district court of appeal level and the Florida Supreme Court.  Grey can handle federal appeals nationwide and all Florida district courts of appeal and the Florida Supreme Court.  Grey is admitted to practice appeals in the United States Supreme Court.

Here are the Florida Rules for Appellate Procedure

https://www.flcourts.org/content/download/219033/file/appellate-court-procedures.pdf