Appeals and Convictions Remedies

An appeal is a challenge to a court´s conviction or sentencing. A post conviction remedy is generally used when all of the appeals have been used up, but a post conviction or post sentencing motion may be motioned for as soon as you are convicted or sentenced.

Trial after Successful Appeal:
An appeal will not block a succeeding trial of the same crime as long as the defendant was not acquitted. If the defendant was found guilty and effectively appeals the conviction, the government is able to retry the defendant for the crime. If the government failed to establish adequate evidence at trial which then in turn became the basis upon which the appellate court upturned the conviction.

Post Conviction Remedies & Challenges:
Post conviction remedies is a term used to describe three different due process moments during the criminal trial, conviction, sentencing and appeal process.

A post conviction remedy could include asking for a reconsideration of a sentence after every other appeal procedure has been ineffective.

These post conviction remedies may allow an automatic direct appeal, which in Wisconsin is a right offered to any person convicted of a crime. There is a time limit within which the appeal must be filed.

Finally, the procedure can be used right after the conviction or sentencing where the defendant contests the conviction or sentence to the court.

Challenging Prior Convictions:
Challenging prior convictions can be used in a wide variety of cases. One example of this would be a conviction for a second offense possession of a controlled substance, which is a felony in Wisconsin. If the defendant was not counseled in the earlier case, then a collateral attack can be used to challenge the conviction.

Collateral Attacks on Prior Convictions:
A collateral attack of a prior conviction is a method used by defense attorneys to stop the prior conviction from increasing the penalties the client currently faces. A collateral attack of a prior conviction is not an appeal. One example of this would be if a person was charged with a fifth offense OWI, which is a felony, but the client waived counsel during his fourth offense case, he should in fact be sentenced as a fourth offense misdemeanant, instead of a fifth offense felon. The prior conviction will remain on his record, but if properly challenged it can´t be used for sentencing purposes.

Acting Quickly Can Make a Difference:
A direct appeal to the Wisconsin Court of Appeals is a right; this helps in getting rid of a phase of the appellate process. Still, it fails to reduce the time restrictions, and the appeals have to be filed within the stated time period. Time is vital factor when dealing with a post-conviction action, and challenges that are still available need to be made immediately.