If you have been convicted of a crime in SC, or the court made a mistake in your sentencing hearing, that’s not necessarily the end of the road.
Depending on which court your conviction was in and the potential grounds for relief, you can file a direct appeal to the next higher court, and then appeal that decision to a higher court in many cases.
If a direct appeal is unsuccessful, you may still have other options available like a post-conviction relief (PCR) action based on ineffective assistance of counsel or a federal habeas petition reviewing the state court’s rulings.
Below, I’ll briefly go through each of these stages of the post-conviction process. If you have been convicted of a crime in state court in SC, call me as soon as possible – there are strict deadlines at every stage of the post-conviction process, including a ten-day deadline for filing your notice of appeal.
What is a Criminal Appeal?
If the court makes a legal mistake during your trial or sentencing hearing, you have the right to file an appeal and ask a higher court to correct the mistake.
The procedure varies depending on which court you are appealing from, but some things apply to all criminal appeals in SC. Regardless of which court you are in, you will have only ten days from the date of conviction to file your notice of appeal (although the deadline is extended if you file post-trial motions).
Criminal appeals in SC, also called “direct appeals,” can only be based on errors of law made by the court – mistakes made by your attorney must be addressed in a separate post-conviction relief (PCR) action, which is ordinarily filed after your direct appeal has been decided.
What is a Notice of Appeal?
After a conviction, you have ten days to file a “notice of appeal.” This is not the full appeal, with your arguments and case law – it’s ordinarily a one-page notice that lets the trial court, the appellate court, and opposing counsel know that you are filing an appeal.
It is a strict deadline, although there are some circumstances where the time limit is extended. For example, if you file post-trial motions like a motion for a new trial, in General Sessions Court you will have ten days from the date of the court’s final decision on your post-trial motions.
In magistrate and municipal court, the deadline for filing your notice of appeal may be extended to 30 days if you file a post-trial motion for a new trial (the new trial motion must be filed within ten days of the conviction).
If you do not file your notice of appeal within the time limits, you lose your right to appeal.
You can still file a PCR action within one year of the conviction, but you lose forever your right to challenge any legal mistakes made by the trial court, and you will lose your right to challenge the conviction later in federal court with a writ of habeas corpus (procedural defaults like missing a filing deadline will prevent you from complying with the “exhaustion of state court remedies” requirement for federal habeas review).
Can I Appeal a Guilty Plea?
You can file a direct appeal after a guilty plea, but the grounds for appeal may be limited because there was no trial and there were fewer opportunities for the court to issue a ruling that could be subject to reversal.
When you enter a guilty plea, you waive all of your constitutional rights including your right to a jury trial and everything that comes along with that – the right to proof beyond a reasonable doubt, to remain silent, to testify, to subpoena witnesses, and to cross-examine the state’s witnesses.
If you did not waive those rights as part of your guilty plea, that could be grounds for appeal or PCR. If you receive a sentence that was not what you expected or wanted, that is not grounds for appeal. If you are sentenced outside of the permissible sentencing range – you were given more time than the maximum permitted for the crime – that is grounds for appeal.
If there were no legal errors made by the court, the appropriate remedy may be a post-conviction relief (PCR) action based on ineffective assistance of counsel during the guilty plea, negotiations, or investigation of your case.
How do You File a Criminal Appeal In SC?
Your criminal appeal begins with the filing of a notice of appeal. Once that is done, there will be further deadlines that you must comply with for:
- Requesting the transcript of the proceedings; and filing
- Initial briefs;
- Answer and reply briefs; and
- The Record on Appeal.
The procedure is different depending on whether you are filing an appeal from the lower courts (magistrate or municipal court) or General Sessions Court.
Appeals from Magistrate Court and Municipal Court in SC
Criminal appeals in SC from the magistrate or municipal court are heard by the Circuit Court of Common Pleas (the civil side of circuit court – general sessions is the criminal side of circuit court in SC).
There are not as many strict deadlines and requirements for magistrate court appeals. You must still file your notice of appeal within ten days, and you will need to file an appellate brief outlining your issues on appeal, why the Circuit Court should reverse your conviction, and the case law that supports your position.
In most cases, there will not be a transcript from the magistrate or municipal court proceedings, but there may be an audio recording that you can request from the court and have transcribed by a court reporter.
The magistrate or municipal judge is responsible for forwarding any evidence and records in the case to the circuit court – if the lower court judge does not provide the necessary information, however, you are responsible for getting the information to the circuit court, even if that means filing a “writ of mandamus” to force the lower court judge to follow the statute.
The circuit court will schedule a hearing during a term of non-jury court, where your attorney will argue your case to a circuit court judge.
Appeals from General Sessions Court in SC
Appeals from General Sessions Court are heard by the SC Court of Appeals (or the SC Supreme Court in certain types of cases).
Your attorney will need to comply with strict filing deadlines in the Court of Appeals, and there are also strict formatting requirements for the briefs that will need to be filed.
In criminal appeals, there will be at least two “rounds” of briefing – the initial briefs and then the final briefs, as well as requirements for filing the Record on Appeal including relevant portions of the trial transcript.
Appeals from PCR Actions in SC
PCR appeals in SC are different – they are filed directly in the SC Supreme Court, bypassing the SC Court of appeals.
In a PCR appeal, you must first request permission from the SC Supreme Court to hear the case – called a “petition for certiorari,” or “cert petition.” So, the first round of briefs filed are an argument as to why the Court should hear your appeal. Then, if the Court “grants cert,” or gives you permission to argue your case to them, you must file another round of briefs arguing the merits of your appeal.
Can I File More than One Criminal Appeal in SC?
If you appealing a conviction from the magistrate or municipal court, the Circuit Court will decide the appeal. If you lose your appeal in the circuit court, you can further appeal to the SC Court of Appeals, SC Supreme Court, and, in some cases, the US Supreme Court.
If you are appealing from the Court of General Sessions, the Court of Appeals will decide your case, after which you may be able to file another appeal to the SC Supreme Court and, in limited cases, the US Supreme Court.
If your direct appeal is denied, you may still have grounds for post-conviction relief (ineffective assistance of counsel). If your PCR action, filed in the Court of Common Pleas, is denied, you can then appeal that decision to the SC Supreme Court and, in some cases, the US Supreme Court.
If your direct appeal, PCR, and PCR appeals are all denied, you may still have an opportunity to file a collateral challenge to the conviction in the federal court in a petition for habeas review, although the potential grounds for habeas relief are strictly limited. The federal court’s decision can then be appealed to the federal Circuit Court of Appeals (Fourth Circuit for SC) and, in some cases, the US Supreme Court.
SC Criminal Appeal Lawyer in Myrtle Beach, SC
Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC who accepts most criminal defense cases including criminal appeals and post-conviction relief cases in SC.
Call now at (843) 492-5449 or send an email to speak with a SC criminal defense lawyer in Myrtle Beach today.