Appeals: Frequently Asked Questions
The appeals process is very different than the trial process. At Nelson Defense Group, our attorneys have a thorough understanding of Wisconsin appellate law, and we have a strong record of success in these matters.
Nelson Defense Group has secured dozens of successful appeals in the Wisconsin courts of appeal and circuit courts, as well as three Wisconsin Supreme Court victories.
Following are common questions people have about criminal law appeals in Wisconsin.
If I want to appeal, how do I start?
By rule, anyone convicted in court must file a notice of intent to appeal within 20 days after the conviction was entered in court. This starts the appeal and triggers subsequent deadlines. If you want to appeal, you should tell your trial attorney to file the notice of intent. It is his or her obligation to do so. The 20 days can be extended, but it is easiest to file the notice of intent timely. If you wait too long, it becomes increasingly difficult to get the time limit for filing the notice extended. If you were convicted without an attorney, our office will be glad to assist you in filing the notice of intent should you hire us to represent you on appeal.
For a free initial discussion, please call us at 715-386-2694. Nelson Defense Group is based in Hudson, Wisconsin, and serves clients statewide.
How soon can I get back into court?
Appeals are different than trial level proceedings, and some cases are appealed all on paper without ever going back to court. Anyone who has been convicted can file a timely postconviction motion in the trial court. This is an opportunity to present new issues or information necessary to decide the appeal. If, for example, you wished to withdraw a plea, the motion to withdraw the plea would be made first in the trial court in front of the same judge who sentenced you. Claims that trial counsel provided the ineffective assistance of counsel also must be raised in a postconviction motion filed in trial court. Motions for sentence modification must also be raised in the trial court. Other cases where the issues and necessary facts have already been preserved and presented can be appealed directly to the court of appeals. To proceed to an appeal in the court of appeals, your attorney will need to file a notice of appeal. In the court of appeals, all of the argument is done on paper. There will be no court hearing.
What happens if I win and what happens if I lose in the court of appeals?
If you win in the court of appeals your conviction will generally be voided and you will no longer be convicted. In some cases, such as those involving insufficient evidence, you cannot be retried again. In most cases, however, you will return to the position you were in before your plea or trial. Another benefit is that after a conviction is overturned you can usually get a different judge and often a better plea offer from the District Attorney. The D.A. might even dismiss the case, but, at the very least, you will get a new trial.
How can I appeal to the Wisconsin Supreme Court?
Any defendant has the right to appeal to the court of appeals, either directly or following an unsuccessful postconviction motion. Appeal to the Wisconsin Supreme Court is different. Following denial of an appeal in the Court of Appeals, you can file a Petition for Review in the Wisconsin Supreme Court asking that court to accept review of your case. A Petition for Review is similar to a brief but addresses why the Court should accept the case. The Court has discretion whether to accept your appeal or not. If the Court accepts your Petition, it will order entirely new briefs and oral argument.
How long do appeals take?
Following the filing of the Notice of Intent, your appellate attorney has 1 month to order the transcripts. The reporters then have two months to send the transcripts to our office. Sometimes they take longer. Once we get the transcripts, we have two months to review the file and transcripts, discuss your options with you, and then file a postconviction motion or Notice of Appeal. Following a filing of a Notice of Appeal, the record must be sent to the Court of Appeals. We then file our brief which contains legal written arguments which explain why you should get the relief we are seeking. After the State responds, we file a reply brief. Once briefs have been filed in the Court of Appeals, the court can take as long as it wants to decide the appeal. They often take many months to decide the appeal. As a result, the appeal can take many months and sometimes much longer.
Can I appeal for a loved one who is in prison?
You can arrange to pay for a loved one, but we will represent our client, the person convicted, and they must agree to the representation.
Can we guarantee results?
No. Appeals are difficult to win. Everyone in prison wants out, and the system is designed to keep them in. What we can promise is that we will diligently represent you or your loved one at the highest level with the most vigor we can. Our appellate attorneys work as a team, and they have won three cases in the Wisconsin Supreme Court and dozens of appeals in both trial court and the court of appeals. We promise to be straight with you about your choices and the likelihood of success.
Can I appeal after my time limits for appeal have run out?
Yes. There are three ways to appeal after the normal time limits for appeal have expired.
First, Wis. Stat. §974.06 provides that:
After the time for appeal or postconviction remedy … has expired, a prisoner in custody under sentence of a court … claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
This means that a prisoner can appeal a constitutional or jurisdictional defect even after his or her appellate time limits have run out provided he or she has never appealed before or has “sufficient reason” for not raising it before. State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).
Second, a person convicted of a crime can file a motion for a sentence modification any time there is a new factor in their case. The phrase ‘new factor’ “refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). If there is a new factor in your case, we can argue for the court to reduce your sentence, but the existence of a new factor does not require a sentence modification. Whether the new factor justifies a sentence modification is discretionary with the same judge who entered the original sentence.
Third, the court of appeals can extend the statutory appellate time limits for good cause. The longer since your judgment of conviction, the less likely they will be willing to do so, but they are likely to grant extensions for several months of time.