About Appeals

About Appeals

After a criminal defendant has been convicted (whether by guilty plea or jury trial) and sentenced, he has the right to appeal his conviction and sentence to two levels of higher court. The appellate courts review his conviction and sentence for legal errors committed by the trial court that justify a retrial, resentencing, or, rarely but possibly, dismissal of the charges.

The Courts

In Tennessee this process begins by the filing of a notice of appeal within 30 days of the conviction becoming final. The appeal first goes to the Tennessee Court of Criminal Appeals. If denied there, permission is sought to appeal to the Tennessee Supreme Court.

In Federal Court this process starts by filing a notice of appeal within 14 days of the conviction becoming final. The appeal goes to the appropriate U.S. Circuit Court of Appeals, and then by permission to the United States Supreme Court.

The Process

To begin the appeals process, the record, consisting of the pleadings and transcripts, is obtained from the trial court and carefully reviewed. When the issues for appeal have been identified, they are thoroughly researched and a brief is written and filed by the appellant, which is followed by a response from the appellee, and finally, if necessary, a reply by the appellant.

The case is then either argued before the appeals court or submitted to the court on the record and the briefs. Appellate courts usually take several months to make decisions once cases have been briefed and argued. The whole process usually takes about 18 months.

Grounds for Appeal

Common grounds for legal error at trial that are raised on appeal include defects in the charging documents and procedures, constitutional violations committed in the arrest of the defendant, the flawed gathering of evidence, and the improper extraction of statements from the defendant.

If a defendant pleads guilty, the process must adhere to a complex and specific set of procedures and comply with various requirements, the violation of which can result in the plea being set aside.

Convictions at trial can be reversed for numerous reasons including improper jury selection, misconduct by the government, improper admission and exclusion of evidence, incorrect or incomplete jury instructions, and lack of sufficient evidence.

Ineffective assistance of defense counsel is attacked after the direct appeal in Tennessee by means of a petition for post-conviction relief, and in Federal Court by means of motions pursuant to Title 28 United States Code Section 2255 for federal convictions. Other grounds for relief after conviction and appeal also exist in limited circumstances under other provisions.

Choosing Issues

 [E]xperienced advocates have long “emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.” Jones, 463 U.S. at 751, 103 S.Ct. at 3313, 77 L.Ed.2d at 993. Generally, the determination of which issues to present on appeal is a matter which addresses itself to the professional judgment and sound discretion of appellate counsel. Jones, 463 U.S. at 750, 103 S.Ct. at 3312, 77 L.Ed.2d at 992; State v. Draper, 800 S.W.2d 489, 498 (Tenn.Crim.App.1990); State v. Swanson, 680 S.W.2d 487, 491 (Tenn.Crim.App.1984). As Justice Jackson observed: “Legal contentions, like the currency, depreciate through over-issue…. [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951).

Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993)

This process of “winnowing out weaker arguments on appeal and focusing on” those more likely to prevail . . . is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 3312-3313, 77 L.Ed.2d 987 (1983).

Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434 (1986)

 Presenting Issues

 “Effective writing is concise writing. Attorneys who cannot discipline themselves to write consisely are not effective advocates, and they do a disservice not only to the courts but also to their clients.” Spaziano v. Singletary, 36 F.3d 1028, 1031 n. 2 (11th Cir. 1994).


Once all avenues for relief have been exhausted a conviction becomes final. After that, in most cases, the only relief available is early release, on supervised release in the federal system, and on parole in Tennessee.