When I lost trial over a decade ago, everything said in that sentencing hearing felt final at the time. I had never been to prison and I had to wrap my head around doing the best years of my life in a place I knew nothing about. Could this really be it? Is the rest of my life as simple as a few words from a judge? I went to prison before smartphones and things like the VIZO app. My relationships fell apart and I was on my own. Hiring a lawyer for my appeal was out of the question as appellate lawyers charge more than trial lawyers, which was already too expensive for me. My only choice was to learn the law and fight my case on my own. I literally spent my first few weeks in the law library grabbing random books and trying to figure out an answer to the rest of my life. I started off poorly, but finished as one of the most notable "jailhouse lawyers" ever.
I learned all of the procedural things, but I learned the hard truths about the system also. I will put what took me years to learn into this article to help prepare you and your loved one for what is never an easy fight for anyone. If you are reading this, you already have downloaded the VIZO app and you have access to a wealth of helpful information to help deal with your loved one's incarceration. The Appeal Issues icon brought you here, but I recommend visiting the Legal Self-Help section after reading this article to understand and utilize the weapons at your disposal in this fight.
I lost my jury trial in Orlando, Florida. I had heard the word "appeal" before, but I had no clue where to start. For starters, after your loved one lost trial, you probably heard the judge say "You have 30 days to appeal your conviction." However, they never tell you where to start! A lot of incarcerated people have inadvertently forfeited their right to appeal because they spent too much time trying to learn where to start. Some inmates are lucky enough to bump into another inmate who has knowledge in this area and doesn't mind enlightening them. I was required to understand the concept of higher courts, and regional jurisdiction without any training in the law. What the hell does "regional jurisdiction" mean, I thought.
The courts that try criminal cases are known as circuit courts. These are the "lower" courts. After the lower courts dispose of a case, there is a 30-day period that passes before the next level of courts are the only courts who can touch the case again. These are the Appellate Courts. You MUST have already filed your "Notice of Appeal" with the circuit court within those 30 days. They hold that regional jurisdiction. This means that instead of dealing solely with case from a specific city, or county, they exercise control over the appeals of a small collection of cities and counties. For example, after the circuit court in Orlando saw it's last 30 days of controlling my case run up, I would have to fight my appeal with the 5th District Court of Appeal in Daytona Beach, Florida. My appeal litigation was pending in Daytona because that appeals court handles appeals from Orange County, Brevard County, Polk County, Volusia County, and Seminole County. This is not something the average defendant is prepared for, but I learned this just in time to have my case filed timely.
Know what District Court you have to appeal to. The Legal Self-Help section has links to an appellate court directory. The section is called "Self-Help" for a reason. The defendants whose poor understanding of the law is exploited the most are expected to already know these things, and submit their legal work by themselves. When faced with this task, I asked myself "How on earth do I file a motion?"
The complexity of the legal realm can scare us into inaction, but when I learned how simple filing a motion is, I became a pro overnight. You can file a motion on a piece of toilet paper. It simply has to have the following criteria:
That’s it. As long has your loved one can write out a document with those specifications, and they mail a copy to opposing counsel, they can “move” a court to do anything. You can move the court to fry ice cream in a microwave, as long as you have a legitimate basis for that motion, and your motion contains the above-mentioned specifications. It could look similar to this example, although the motion doesn’t always have to be this complicated.
The prison law libraries provide paper, pens and envelopes to inmate who don’t have money, so if you already send your loved one money, he/she might be required to buy their own supplies.
After the appeal has been accepted by the DCA (District Court of Appeal), briefings will be required to be filed. Here is the trickiest part of the appeal process. Appeal courts typically hear a case once every 90 days. That’s how they set their dockets. If your loved one’s case isn’t scheduled to be heard in the first quarter, it might be heard in the second or third quarter. This is why appeals take so long. It’s simply a docketing issue.
After the initial commencement of the appeal, appellate courts typically send instructions to inmates as to how to compose a brief. Oftentimes, inmates are given appellate public defenders to argue their appeal, but as is commonly understood with public defenders, they often do more harm than good. I can’t count the number of inmates I saw get “Anders Briefs” from their appeal public defenders.
An Anders Brief should definitely be illegal. It is a brief filed by appellate counsel explaining to the DCA why they refuse to argue an inmate’s appeal. The public defenders on appeal essentially make a stronger case against the inmate than the state prosecutors did to obtain the conviction. This definitely makes the appeal tougher, and decreases the chances of having a conviction overturned. In my Anders Brief, the cop who arrested me was described like a hero in an old western novel, while the grounds I needed for my appeal required that the DCA hear how he fabricated evidence, lied and coerced witnesses in order to get me convicted. In the end, once the DCA grants the Anders Brief, the inmate is left to fend for himself because the DCA allows the appeal public defender to withdraw the representation that they were court-appointed to do.
If an inmate kept the instructions initially sent to him by the court, he’ll need to adhere to every letter. They require inmates to include a table of contents, a statement of the case, and other technical requirements that make it difficult for uneducated people to be in compliance with court filings. But once these things are figured out, it could be years before your loved one gets a decision back from a state DCA. My appeal took 2 years.
The worst part is what is known as “Per Curium”. Inmates will wait anywhere from 2-5 years for any hint that their appeal has made advancements, and get a letter in the mail that simply says “This case has been Per Curium Affirmed.” That term means that the appellate court has denied the appeal and refused to explain why. This is quite painful because you never know which grounds had merit, and which ones didn’t. Further, without some kind of opinion from the DCA, an inmate cannot take his case to the State Supreme Court, because Supreme Courts do not hear Per Curium cases. This effectively ends the appeal of the trial itself.
With the appellate process over, an inmate now has an opportunity to file a Motion for Post-Conviction Relief. In Florida, this is known as Rule 3.850, and is actually the most effective way Florida inmates have shortened their own sentences, and in some cases freed themselves from life sentences. The reason that the 3.850 is so effective is because it ties in with the Constitution. The Constitution guarantees us the right to effective assistance of counsel (a good lawyer). Jailhouse lawyers use this premise as a vehicle to get back into the lower court that convicted them. They show every reason why the trial lawyer was ineffective, thus violating their Constitutional rights. Where the basic appeal focuses primarily on procedural violations as to the trial itself, the 3.850 attacks the lawyer.
If enough cause is shown that the lawyer provided horrible representation, an evidentiary hearing is granted, and the inmate is transferred back to the county jail to attend an evidentiary hearing at the court that convicted him. With the case reopened, inmates can get under oath and enter new information into the evidence that will warrant a new trial. In these cases, the conviction is overturned, and the inmate is set to undergo the entire trial phase all over again. Here, he can take a plea, or negotiate terms that will prevent him/her from going back to prison.
For the inmate who loses his 3.850, he has to go through the dreadful DCA phase of that motion for years until it gets Per Curium Affirmed. The only difference between the denial of an appeal of a 3.850 and that of the regular appeal is that the 3.850 can be further appealed to the local federal court given the ties to Constitutional rights. And if that federal case is denied, it can be even further appealed to the federal appellate courts. Only the rarest cases make it to the United State Supreme Court, whose words are final.
Equip your loved ones with this knowledge while they are incarcerated. To be “time-barred” from pursuing a legal remedy because it took them years to learn the facts contained in this article will be the biggest regret of both their life and yours. I spoke with men doing 20 years with no options at all because they waited too long to start going to the law library. Chance favors the prepared mind. If the chance presents itself, make sure your loved one is prepared.
Moliere Dimanche is the publisher of VIZO, and the author of It Takes a Criminal to Know One.
VIZO: Provided by Moliere Dimanche
VIZO allows family members of incarcerated loved ones to send money, mail, and load phone calls from the app. VIZO provides databases so loved ones can track inmate whereabouts, and contact high-ranking officials within prison facilities in all 50 states. Valuable information is available for self-help legal purposes, and legal court documents are available for download. VIZO provides a wealth of information and resources for families affected by the incarceration epidemic, and it's built-in social platform, The Vent, provides an environment for families to network with other families who know what it's like to have loved ones in prison.
This release includes The Vent social media platform for families of incarcerated people to network.
March 17, 2019
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