Direct appeal versus post conviction for defendants who have gone to trial

Direct appeal

Every defendant who has been convicted at trial is entitled to an appeal and the trial attorney has a duty to file a timely notice of appeal if the client desires.  If the defendant cannot pay for an appeal, the Office of Indigent Appeals will be appointed to represent him or her. On direct appeal, the issues are limited to those that can be found in the record, i.e., the transcript of the trial.  Which is one reason why it is important that if the trial court refuses to let a defendant’s evidence in, the defendant needs to make a proffer of that evidence (explain for the record exactly what the evidence being excluded is) so that the appellate court can judge whether the exclusion of that evidence was error.

A defendant whose conviction has been affirmed by the Mississippi Court of Appeals can ask the Mississippi Supreme Court to review his case.   MRAP 40. To do this, the defendant has to first ask the Court of Appeals for rehearing within 14 days of the Court of Appeals’ decision (you can request additional time).  When and if rehearing is denied, the defendant has 14 days to file a petition for certiorari with the Mississippi Supreme Court.  MRAP 17.

Here are the Miss. Rules of Appellate Procedure.

If the Miss. S. Ct. denies relief, a defendant can petition the United States Supreme Court for certiorari but the issues suitable for the USSCT are few and far between.

Post Conviction

As a practical matter, the next step is state post conviction.  The statute of limitations for state post conviction is three years from the date the Miss.S. Ct. denies relief or the Miss. Court of Appeals denies relief (whichever is later).  The catch is that the statute of limitations for federal habeas is one year and it is tolled only while the State post conviction petition is pending.  This means that if you want to preserve your right to have any federal claims heard in federal court, you need to file your state post conviction petition within a year of the appeal being final.

The vehicle for asking the court to vacate a guilty plea is a motion for post-conviction relief. M.C.A. Sect. 99-39-1 et seq.  The petition itself is filed in the Mississippi Supreme Court.  In essence, it is a petition setting forth grounds that establish a right to an evidentiary hearing in the trial court (the same trial court where the defendant was originally tried).

The main difference between a direct appeal and a post conviction petition is that the pcr petition is not limited to the record.  Which means the type of issues that can be raised are limited only by the imagination.   The classic issues that come to mind are 1) new evidence that was not available at trial, Hunt v. State, 877 So.2d 503 (Miss.App. 2004); 2) new law that changes the rules. Jones v. State, 122 So.3d 698 (Miss.App. 2013); 3) the failure of trial counsel to investigate the case, call witnesses, object to erroneous evidence. object to erroneous instructions, etc., Blunt v. State, 55 So 3d 207 (Miss.App. 2011), Davis v. State, 87 So.3d 465 (Miss.  2012);  4) a conflict of interest that prevented trial counsel from adequately representing his client. Yarbrough v. State,  139 So. 3d 143 (Miss.App. 2014).

You might go back and investigate the circumstances of the arrest, the confession, search warrants, etc.  You can start over from scratch, really. If you could pay a lawyer to devote an entire year to your case, there is no telling what might be found.  The real problem is that most inmates can’t afford to pay an attorney to spend a full year investigating his case.

In filing a petition with the Miss.S.Ct. asking to be allowed to proceed on post conviction, the petition must contain actual evidence that would be used to prove your claims.  That is, it is not enough to tell the court “my lawyer did not investigate my case.”  You have to attach the evidence the attorney should have found and presented at trial.  This usually comes in the form of affidavits from witnesses.

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