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Should You File an Appeal or Writ of Habeas Corpus?

Individuals are often confused by the distinctions between appeals and Writs of Habeas Corpus. The latter, translated “you shall have the body” is in many instances used when a person convicted of a felony seeks to have his case reconsidered. Whether a person should file one or the other, or indeed both, is a matter that can be rather complicated. Both are used in the appellate process.

In a nutshell, one may think of the difference between a Writ of Habeas and an appeal as whether the issue is within the file of the case file or outside of it. As such, an appeal can be filed if it is believed that a legal error was made at the trial. New evidence may not be brought in. For an appeal to be considered, then, the issue must relate to some error in pre-trial motions or at trial. Generally all of the following must apply:

• The trial judge committed an error;
• The defense lawyer objected to the error at the time;
• The error harmed the defendant.

An appeal is made within a limited time after sentencing. An individual is required to file a Notice of Appeal within 60 days if convicted of a felony or 30 days if convicted of a misdemeanor.

Four outcomes are possible in an appeal: the conviction and sentence can be affirmed; the defendant may be granted a new trial; the sentence can be overturned, and a new sentencing hearing ordered; or the conviction can be overturned and the case cannot be retried.

A Writ of Habeas Corpus, by contrast, can be brought for new evidence. It is, then outside of the file. Such an issue, by its nature, could not have been made on direct appeal. Most Writs are brought when a defendant believes he received ineffective representation by his attorney. A Writ may also be brought if an individual loses his direct appeal. Generally the issue must relate to a denial of a constitutional right. If an individual fails in a Writ of Habeas Corpus he may be able to file an appeal in Federal court.

Whichever avenue you take, the appellate process is complex. It is very important that you hire a Los Angeles criminal defense attorney to assist in navigating the waters of appeal. The attorneys at Wallin & Klarich have the experience and expertise you need to ensure your best chances. Call us today for a consultation at (888) 749-0034.

About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.