Appeals and Post-Conviction Relief

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Appeals and Post-Conviction Relief

 

Appeals

Usually, an appeal alleges that the judge committed errors during the trial or plea, and those errors warrant reversal of a conviction and the granting of a new trial.  

ONE EXAMPLE WOULD BE WHEN if the judge allowed testimony that should not have been heard by the jury BECAUSE IT WAS “HEARSAY.” SEE,  S. C. RULES OF EVIDENCE, RULE 801 (C).  https://www.sccourts.org/courtReg/displayRule.cfm?ruleID=801.0&subRuleID=&ruleType=EVD.  

AN EXAMPLE OF IMPROPER HEARSAY WARRANTING REVERSAL IS IN State v. Washington, 431 S.C. 619, 848 S.E.2d 794 (S.C. App. 2020) https://casetext.com/case/state-v-washington-5172079

OTHER ERRORS OF LAW INCLUDE WHEN THE JUDGE DOES NOT ALLOW TESTIMONY THAT SHOULD HAVE BEEN ALLOWED, OR WHEN THE JUDGE GIVES THE JURY INSTRUCTIONS THAT ARE NOT ACCURATE STATEMENTS OF THE LAW.  

These mistakes may warrant the reversal of a conviction AS LONG AS THESE MISTAKES ARE NOT “HARMLESS ERROR,” State v. Young , 420 S.C. 608, 625803 S.E.2d 888, 897 (Ct. App. 2017), THEY CAN BE GROUNDS FOR REVERSAL ON APPEAL.  

OBVIOUSLY, IF YOU ARE LOOKING FOR A LAWYER TO HANDLE AN APPEAL, YOU NEED SOMEONE WHO KNOWS CRIMINAL LAW–A LAWYER WHO CAN READ THE TRANSCRIPT OF A TRIAL and identify possible errors. 

IF YOU WANT AN ATTORNEY WITH THE EXPERIENCE TO FILE AN APPEAL, CALL MICHAEL D. MCMULLEN NOW.

Michael can review the transcript of a plea or trial and help a client and his or her family determine whether an appeal or Post Conviction Relief Action is advisable.  

MICHAEL HAS PRACTICED CRIMINAL LAW, AS A PROSECUTOR AND DEFENSE ATTORNEY, SINCE 1994.  

Appeals from General Sessions Court

Rule 203 (b) of the South Carolina Appellate Court Rules provides the time limit (ten days) to appeal a conviction from General Sessions Court.  It says:

2.  Appeals From the Court of General Sessions.  After a plea or trial resulting in conviction or a proceeding resulting in revocation of probation, a notice of appeal shall be served on all respondents within ten (10) days after the sentence is imposed.  In all other cases, a notice of appeal shall be served on all respondents within ten (10) days after receipt of written notice of entry of the order or judgment.  When a timely post-trial motion is made under Rule 29(a), SCRCrimP, the time to appeal shall be stayed and shall begin to run from receipt of written notice of entry of an order granting or denying such motion.  In those cases in which the State is allowed to appeal a pre-trial order or ruling, the notice of appeal must be served within ten (10) days of receiving actual notice of the ruling or order; provided, however, that the notice of appeal must be served before the jury is sworn or, if tried without a jury, before the State begins the presentation of its case in chief.

 

 

Appeals from Municipal or Magistrate Court

An appeal from the lower court–Municipal (City) or Magistrate (County)–may be filed within thirty days.  The Rule states:

RULE 18
APPEALS

(a) All appeals of judgments rendered by the magistrates court shall be to the circuit court of the county where the judgment was rendered. Within thirty (30) days after delivery of written notice of judgment to the parties or their attorneys, a party wishing to appeal shall serve on the respondent and file a notice of appeal containing a statement of the grounds for appeal with the magistrate rendering the judgment and with the Circuit Court of the County where the judgment was rendered. If the judgment is announced at the trial in the presence of the parties or their attorneys, the notice of appeal shall be served and filed within thirty (30) days of the date the judgment is announced. At the time of the filing of the notice of appeal, the appropriate filing fee shall be paid by the appellant to the clerk of the circuit court to which the appeal is taken, unless a motion for leave to proceed in forma pauperis and an affidavit showing the appellant’s inability to pay the fee required to appeal the action accompanies the filing of the notice of appeal. The right of appeal from a judgment exists for thirty (30) days after the denial of a motion for a new trial.

(b) Within thirty (30) days of the date of filing of the notice of appeal with the Circuit Court, the magistrate shall file the return to the notice of appeal with the Clerk of the Circuit Court for the county wherein the judgment was rendered, together with the record, a statement of all proceedings in the case, and, if necessary, the testimony taken at trial. Upon motion for good cause shown, the Circuit Court may allow a definite extension of time in which to file the return.

(c) Pursuant to Rule 75, SCRCP, upon receipt of the magistrate’s return, the clerk of the Circuit Court to which the appeal is taken shall give notice in writing to the parties that the return has been filed.

Post-Conviction Relief

If the attorney for the defendant did not object to the testimony, the evidence, the prosecutor’s argument, or to the judge’s instructions to the jury, then there is still a remedy–Post Conviction Relief.

Post-Conviction Relief (PCR) Applications are designed to rectify mistakes made, usually by the trial attorney, that kept a person from getting a fair trial.  No one is entitled to a perfect trial.  However, where the mistakes of the defense attorney prevent a defendant from getting a fair trial, our system of justice provides PCR as a remedy.

The Defendant/Applicant first must demonstrate that his or her attorney’s performance ‘fell below an objective standard of reasonableness’ under the ‘prevailing professional norms.’ Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Second, he or she must show a ‘reasonable probability’ that absent counsel’s error, the outcome of the proceeding would have been different. Id. at 687-88.

United States v. Wilke (W.D. N.Y. 2017)

Additionally, the PCR process can be utilized under some circumstances when new evidence surfaces that was either not available or not disclosed at the time of the initial proceedings.

There are deadlines for filing an Application for Post-Conviction Relief, and it is always best to file an appeal sooner, rather than later.  No PCR Application was ever dismissed because it was filed too soon after the conviction.

If you need a lawyer to handle your PCR Application or simply to help you determine whether you should file a PCR Application, call Michael D. McMullen at 803-252-4433.

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Defending criminal cases throughout South Carolina.

Created by Designs By Kessler