Appeals Process

[Jockeyperry]

My husband was convicted of trafficking in heroin and sentenced to 15years. The home where the drugs were found was occupied by multiple people. The landlord, another tenant, my husband and myself had access to this home. The drugs were found in a separate room, not a bedroom, but a room that was mainly used for storage in the home. Nothing found in the room showed my husband owned any of the things. There was an electric bill in the home in his name. My things were in the home (clothing, bills, ect.) Photographs were taken as evidence but photos didn't depict the rest of the residence. It only showed drugs that were found and not its placement. Numerous officers testified stating that no one else was in the home. My husband maintains his innocent. He did not have knowledge of what was in this room. In fact, the room did not have any of his belongings in it. Our business was our room not anyone else's. My husband and I were the only 2 at home at the time of arrest. The jury was led to believe this was my husband's home and his alone. We are devastated by this and the fact that he was unable to prove his side. Who in their right mind would come forward and say, "Yes, I lived there too." My husband took the blame for someone else's mess. We need help. He wants to appeal...can someone give me some information on what his approach would be and what would be a ball park cost? Please help.

 

[CdwJava]

What grounds does he have for an appeal? One does not have grounds for an appeal simply because a jury believed that the defendant was responsible.

From a legal site, lawyers.com, regarding FL law:

Appeals
If you're found guilty after a trial, you're entitled to an appeals process. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.

In Florida, you generally have 30 days following sentencing to file an appeal.

There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:

- Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
- Lack of sufficient evidence to support a verdict of guilty
- Mistakes in the judge's instructions to the jury regarding your case

You may also appeal due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate you.

In Florida, if you entered a guilty or no contest plea, you may directly appeal only for the following reasons:

- The court lacked subject matter jurisdiction (i.e., the court did not have the authority to decide the case based on the subject matter);
- There was a violation of the plea agreement
- Your plea was involuntary
- There was a sentencing error; or
- As otherwise provided by law


The best way to evaluate the cost and likelihood of their being grounds for appeal would be to obtain a free consultation with an attorney.

What did his attorney say when the verdict came in? Did he have any idea for an appeal? Has it been thirty days, yet?

 

[army judge]

From what you say, I see no appellate issues. The jury decided his guilt based upon the facts presented.

Your argument about ownership or knowledge is specious. In fact, it isn't an appellate argument.

Talk to a couple of criminal appellate attorneys about his case. See what they say. Without the trial record, I may be missing something.

Appellate cases are expensive, often dour or treble the original case. Add into that the cost of a trial transcript and you're looking at a minimum of $10 grand and close to $20 grand.

When you speak with the appellate attorneys, ask about habeas corpus relief. That is often more broad in scope and a quicker remedy. It is also about half the cost of an appeal and usually can be done in six months. It doesn't mean it's easier, just quicker. They are often more successful.

 

[Jockeyperry]

Thank you for your responses. According to his lawyer, there are grounds for appeal based on a denial of motion to suppress(knock and announce), denial of special jury instruction, and judgment of acquittal.

Firstly, they did not knock and announce when entering the home. Swat simply banged down the door and shoved guns in our faces. Also, can someone explain to me why police officers/detectives felt it was ok to photograph evidence with our driver's licenses in different photos and in different locations next to different pieces of evidence. My husband was wrongfully found guilty for a crime he did not commit just because he was the only one home at the time. There were 3 other people that had access to this home. If there are no appellate issues here then I have completely lost my faith in the justice system.

When starting this thread, we had not spoken with his lawyer as his trial was concluded 2 days ago. He went to jail immediately upon his conviction. I spoke with his lawyer earlier today and was informed of price and instructions. He said that if the public attorney handled transcripts this would alleviate costs. His lawyer would then take over the case. Is it possible to appeal a case without a private lawyer and just a public defender? Would the public defender conduct the same appeal?

Cost is obviously an issue. If he can appeal his case with a public defender then this would be less of a burden on myself and our family. How difficult is it to win an appeal based on the facts and grounds I've mentioned previously?

 

[Jockeyperry]

From what you say, I see no appellate issues. The jury decided his guilt based upon the facts presented.

Your argument about ownership or knowledge is specious. In fact, it isn't an appellate argument.

Talk to a couple of criminal appellate attorneys about his case. See what they say. Without the trial record, I may be missing something.

Appellate cases are expensive, often dour or treble the original case. Add into that the cost of a trial transcript and you're looking at a minimum of $10 grand and close to $20 grand.

When you speak with the appellate attorneys, ask about habeas corpus relief. That is often more broad in scope and a quicker remedy. It is also about half the cost of an appeal and usually can be done in six months. It doesn't mean it's easier, just quicker. They are often more successful.

The following is directly from jury instruction:

Constructive possession means the controlled substance is in a place over which the (defendant) has control, or in which the (defendant) has concealed it.



In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the (defendant's) (1) control over the controlled substance and (2) knowledge that the controlled substance was within the (defendant's) presence.



Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.



If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.



If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.




To establish constructive possession of a controlled substance, the State must prove beyond a reasonable doubt (1) that the defendant had knowledge that the contraband was within his presence and (2) that the defendant had the ability to exercise dominion and control over the contraband.




I respectfully disagree that his argument about ownership or knowledge is specious. Knowledge or ownership is quite simply...the law regarding this matter.

 

[army judge]

The following is directly from jury instruction:

Constructive possession means the controlled substance is in a place over which the (defendant) has control, or in which the (defendant) has concealed it.



In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the (defendant’s) (1) control over the controlled substance and (2) knowledge that the controlled substance was within the (defendant’s) presence.



Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.



If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.



If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.




To establish constructive possession of a controlled substance, the State must prove beyond a reasonable doubt (1) that the defendant had knowledge that the contraband was within his presence and (2) that the defendant had the ability to exercise dominion and control over the contraband.




I respectfully disagree that his argument about ownership or knowledge is specious. Knowledge or ownership is quite simply...the law regarding this matter.

WOW, he should be out by Christmas, maybe even Thanksgiving!!!

 

[Jockeyperry]

WOW, he should be out by Christmas, maybe even Thanksgiving!!!

Excuse my candor but, if your statement was not out of sarcasm, how can I help my husband get from point A to B? I hear the appeals process in FL may take about a year. That is not the problem. The problem is making sure he has proper representation. Can a public defender handle this appeal and is it advised?

He has a private lawyer presently, but additional funds are needed for appeal. If it is imminent in his situation that a private lawyer handle the appeal then we will find a way to pay for it. I am just unsure of if a public defender will do the same as a private attorney.

 

[CdwJava]

I believe AJ was being facetious. But, you should be aware that appeals are common, and appeals rarely succeed lacking egregious error. And when they are successful, they often involve a new trial as opposed to letting the person go.

 

[army judge]

Most public defenders don't do appellate work. Ask the PD about the appeal. Speak with other attorneys about potentially representing him. Know that appeals are rarely successful. In fact, appeals are unsuccessful 95% of the time.