What are your appeal options?

You may think that once a ruling is made in your case, the case is over. However, you have many options even after a conviction.

There is the possibility that the conviction may be challenged and overturned on appeal.  After a final ruling or determination in your case, your attorney can help you exhaust the appeals process.

An appeal may not be the best way to move forward with your case, so you will want to discuss this possibility first with an experienced criminal defense attorney with appellate experience.

Appeals Attorney John Calcagn has experience with appeals in both civilian and military courts.

Attorney Calcagni will use his experience with the appeals process to help you overturn the ruling or conviction in your case, if possible.

If you have experienced a negative final ruling or conviction in your case

Contact Calcagni Law today to discuss your case and whether or not an appeal is right for you.

Direct Appeal

A direct appeal challenges either a criminal conviction or a sentence for a defendant who either pleaded guilty or was found guilty after trial.

The Appeals Process

The appeals process is very different than the trial process.

A court of appeals or appellate court will not likely consider new evidence in the case. Rather, the appeals court reviews the actions that occurred in the trial court for what is known as “legal error.” An appeal challenge action(s)s that occurred during trial, such as by the lawyers, judge or jury.


The person who files the appeal is called the “appellant.” In a criminal context, the defendant who was found guilty in the trial court becomes the appellant by filing an appeal of his conviction and/or sentence.


The party responding to the appeal is the government and is referred to as the “appellee.”


The arguments attorneys make on appeal are usually submitted in writing called a “brief.”

The appellant files the initial brief that contains arguments in support of why either the conviction should be overturned or the sentence should be reduced.

Reply Brief

The appellee responds with a “reply brief.”  If the appellant so desires, he or she can file a written and final response to the reply brief.

Arguments on Appeal

The arguments on appeal challenge actions or omissions by the parties at trial, which the appellant believes deprived him of a fair trial.

All arguments must be based upon supporting information contained in the trial record, which consists of a verbatim transcript of the pretrial and trial proceedings, pleadings, and evidence offered to the trial court.

Oral Argument

The appeals court considers only the trial court record and will not typically allow for the submission of new evidence.

After reviewing the written submissions of the parties on appeal and the lower court record, the appeals court invites the lawyers to appear before it for the presentation of what is called “oral argument.” The actual parties represented on appeal are not normally present for arguments, and are certainly not present if incarcerated.

During oral argument, the lawyers are given a limited period of time, usually between 10 – 20 minutes, to make an oral presentation in support of their respective claims on appeal. The judges on the appeals normally court pose questions to the lawyers during their arguments, typically to clarify questions about the trial record, points of law, or application of the law to the facts of the case.

An appeals court does not determine whether or not a defendant is guilty or innocent. This is the function of a trial court. Instead, on appeal, the court reviews what happened at trial to determine if any legal errors were made.

Examples of Legal Errors

Examples of legal errors include impermissible argument by the lawyers, the judge allowing evidence that should have been excluded or disallowing evidence that should have been admitted, juror or prosecutor misconduct,  and many more.

If a legal error is identified, the appeals court must then determine if the error deprived the defendant of his constitutional right to a fair trial.

If the legal error is big enough, such that it negatively impacted the right to a fair trial, the appeals court may overturn the trial court’s ruling and vacate the resulting conviction. If the legal error applies to the sentence imposed, the appeal court may reduce the defendant’s sentence or send the case back to the trial court for re-sentencing.

If an error was either not committed or did not impact the defendant’s right to a fair trial if committed, the appeals court will affirm the lower court’s ruling and deny the appeal.

Interlocutory Appeal

An interlocutory appeal happens while a case is still pending in a trial court and is very different from a direct appeal.

Interlocutory appeal means an appeal in the middle, or while is case is still pending.

Trial judges make many rulings over the life of a criminal case. Judges rule on whether or not to allow evidence into the case as well as rulings on motions.

A lawyer can challenge all of these decisions through the interlocutory appeals process. The reason for this type of appeal is to prevent an interlocutory decision from preventing a defendant from receiving a fair trial.

There are restrictions for interlocutory appeals because courts do not want factional litigation.

For example, in some jurisdictions, there exists no right to an interlocutory appeal. In other jurisdictions, only the prosecution or government can file for an interlocutory appeal if aggrieved by an intermediate decision or ruling of a trial judge. In other jurisdictions, both parties have an equal right to file for interlocutory relief.

Filing an Interlocutory Appeal

Filing an interlocutory appeal is often not a matter of right, even in those places where this procedure exists. Often times, the party seeking to file an interlocutory appeal must apply to the appeals court for permission to do so.

The appeal court will then decide if the claim(s) raised should be addressed while the matter remains pending in the trial court or later, such as after trial on direct appeal.

Your attorney can help you decide if an interlocutory appeal is right for you and available under the rules of criminal procedure that govern your case.

State and Federal Appeal

There are different processes or appeals in state and federal courts. It is important to have an attorney that understands the differences. It is also important that your attorney has experience with these procedures.  As general rule, most lawyers who focus on trial work do not have much experience or expertise with appeals.   These different procedures require different skill sets.    However, there are some lawyer who are excellent trial attorneys with appeals experience.  Having an attorney experienced in both areas and who understand the applicable rules for each can greatly improve your chance of winning an appeal.  Criminal Defense Attorney John L. Calcagni III has trial and appeals experience in both state and federal courts to help you win your case.

Military Court

A military court is different than a civilian court. Depending on the court-martial there are different rules for an appeal.  If you are convicted at a special or general court-martial, your case will receive an automatic review on appeal.  The first person that reviews the case is the “convening authority,” or the high ranking military member that ordered your case to trial by court-martial.  The convening authority can then “mitigate” the charges, conviction or sentence after trial by court-martial by disapproving the findings and sentence in part or in whole.

After the initial review of the case by the convening authority, you can pursue an appeal if the adverse findings and sentence are approved.  The following courts will hear these military direct appeal cases, depending upon your branch of military service:

  • Army Court of Criminal Appeals
  • Navy-Marine Corps Court of Criminal Appeals
  • Air Force Court of Criminal Appeals
  • Coast Guard Court of Criminal Appeals