Appeals / Writs

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. (Many states have two levels of appellate courts -- an intermediate appellate court and the state Supreme Court.) This section merely outlines common writs. Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.

What is an Appeal?

An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court's sentencing decision without actually challenging the underlying conviction.

What's 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 take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense). Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

• The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
• A final judgment has not yet 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). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately (unless you're asking a Federal court to overrule a State court decision).

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 for what is known as a "writ of habeas corpus". A writ of habeas corpus (literally to "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 that 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 country will not be held for long times in prison in violation of their rights.

How We Can Help

Convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals and writs. However, time is of the essence when notifying a court that a defendant may take a writ or appeal. Here's why...

In appeals situations in either State or Federal Courts, defendants and/or their attorneys need to file a notice of appeal immediately after either conviction. This is a brief document which alerts the trial court that the defendant will be appealing, and which alerts the court clerk to start preparing the transcripts for review by the lawyers and higher courts. If defendants do not file a notice of appeal or if they file the notice late, they may not be able to file an appeal at all.

In writ cases, the same principle applies. Immediately after a defendant thinks he or she has been wronged, and assuming that there are facts outside the record which need to be shown to the higher court, he or she needs to file the writ. There is no notice of appeal which needs to be filed in a writ situation, but time is still of the essence.

If you are interested in reversing a criminal charge against yourself or a loved one, we encourage you to call now for a free/no obligation consultation during which we can discuss the possibility of success and the process involved.