Category: Uncategorized

Weighing the Risks of Requesting a New Trial

Posted by Chelsey Dahm-Bradley - February 17, 2016 - Uncategorized

A motion for a new trial is a common post-conviction motion that asks a reviewing court to overturn a judge’s order or a jury’s verdict, thereby putting the defendant in the position he was in prior to the start of trial.

In Wisconsin, the availability of a new trial is governed by Wis. Stat. §805.15, which provides that an individual may request a new trial where:

  • There were errors in the trial
  • The verdict is contrary to law or to the weight of evidence
  • There were excessive or inadequate damages
  • There is newly-discovered evidence
  • The interests of justice require a new trial

Wis. Stat. §805.15(1). In Colorado, motions for a new trial are governed under Colo. Crim. P. 33. This statute allows an individual to request a new trial where:

  • The interests of justice require a new trial
  • There is newly-discovered evidence

A motion for a new trial based on the interests of justice must be filed within 14 days following the verdict. Colo. Crim. P. 33(c). A motion for a new trial based on newly discovered evidence must be filed as soon as the new evidence becomes known to the defendant. Colo. Crim. P. 33(c).

Before requesting a new trial, the defendant must consider the potential risks. For example, a defendant could be convicted of the same crimes and receive a greater sentence. Additionally, if there is sufficient evidence to add additional charges before the second trial, the State may do so. Therefore, it is very important to review the potential risks of requesting a new trial before motioning for one.

To speak with a knowledgeable attorney about the possibility of a new trial in your case, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

But What do I Win? Remedies on Appeal in Criminal Cases

Posted by Chelsey Dahm-Bradley - December 22, 2015 - Appeals, Civil Appeals, Criminal Appeals, Practice, Uncategorized

In the majority of criminal cases, a successful appeal or post-conviction motion is not the end of a criminal case. In fact, most post-conviction motions and appeals request specific relief that prolongs the case further, such as a new trial, a new sentencing hearing, or the withdrawal of a plea and the opportunity to go to trial. Following is a discussion of some potential outcomes of a successful post-conviction motion or appeal.

New Trial

If the reviewing court orders a new trial, the defendant is put in the same position he was in prior to the start of the original trial. The State may attempt to negotiate a plea bargain to avoid a second trial, however it is not required to do so. When requesting a new trial, it is important for the defendant to consider that vacated charges will be reinstated. Further, there is a possibility that he will receive the same convictions – or more – and/or a harsher sentence (assuming he did not receive a maximum sentence on all charged counts in the initial trial).

Re-Sentencing

If the reviewing court affirms a conviction but finds issue with the sentence, it may vacate the sentence and order re-sentencing. This can happen in a variety of situations, such as where the reviewing court determines that a sentence is unreasonable, the sentencing court considered incorrect information, or where the sentence falls outside of statutory sentencing guidelines. An order for re-sentencing puts the defendant back in the position he was in immediately following the criminal conviction, so the defendant can receive any sentence authorized by law.

Vacating the Plea

Where a defendant is successful in arguing that he should be permitted to withdraw his plea, the reviewing court can order that the plea be vacated. This puts the defendant in the same position he was in prior to accepting the plea. As with an order for a new trial, the State may attempt to negotiate a plea bargain, but is not required to do so. If a new plea bargain is not reached, the case will proceed to trial. As with a new trial or re-sentencing, the defendant can receive any sentence which was authorized by law at the point before the plea was entered.

While these are common remedies after a successful post-conviction motion or appeal, they are not the only remedies available.  To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Can my Criminal Record be Expunged?

Posted by Chelsey Dahm-Bradley - October 21, 2015 - Uncategorized

Why Expungement?

Due to the public nature of most criminal court records, a single bad decision can result in a permanent, detrimental mark on a person’s record. Some states make these records more readily available than others. For example, individuals can search and view Wisconsin criminal records online, for free, through “Wisconsin Court System Circuit Court Access.” Colorado does not have a similar free database, however interested persons can search Colorado records online through paid vendors. In any state, individuals can also go to the clerk of court and request to view or copy a criminal record.

What is Expungement?

Due the detrimental nature of having a public criminal record, most States offer a procedure for having certain records expunged. Through engagement, a criminal case file is sealed, and cannot be viewed without a court order.

Am I Eligible for Expungement?

Wisconsin law allows expungement in two main situations:

1) Youthful offenders – Wis. Stat. §973.015

At the time of sentencing, a court may order that a record be expunged upon successful completion of the sentence where: (1) the offender is under the age of 25 at the time of the commission of the offense, (2) the offense carries a maximum imprisonment of 6 years or less, and (3) the court determines that the offender will benefit and society will not be harmed by the expungement.

If the offender was placed on probation or sentenced to serve jail or prison time, the clerk will automatically have the record expunged following successful completion of the sentence. Conversely, if the offender was only sentenced to pay a fine or restitution, the offender must request expumgement, upon successful completion of the sentence, using form CR-266.

2) Juvenile offenders under age 17 – Wis. Stat. §938.355(4m)

Upon turning 17, an offender who has been adjudged delinquent as a juvenile may petition the court for expungement of the juvenile adjudication where: (1)  he has complied with the conditions of the dispositional order, and (2) the court determines that the juvenile will benefit from, and society will not be harmed by, the expungement.

To request expungement under this circumstance, an individual must file form JD-1780.

The court may also expunge a criminal record where an offender committed a commercial sex act as a victim of human trafficking under Wis. Stat. §973.015(2m). Beyond thee three situations, a judge has no authority to expunge any other type of record.

Colorado law only allows expungement in two circumstances:

1) Juvenile records (Under the age of 18) – §19-1-306, C.R.S.

Juvenile records may be expunged unless: (1) the offender committed an offense involving unlawful sexual behavior, (2) the offender was adjudicated as an aggravated or violent juvenile offender, (3) the offender received an adult sentence, or (4) the offender failed to pay restitution stemming from a juvenile conviction.

If these circumstances are not present, a juvenile offender may request to have his record expunged by filing a Petition for Expungement of Record, form JDF-302, available here. Depending on the case, the offender may be able to file the petition immediately, or may have to wait up to five years. To determine when a petition can be filed in your case, review form JDF-301, available here.

2) Underage Drinking and Driving – §42-4-1715, C.R.S.

Underage drinking and driving records may be expunged where the offender: (1) had a BAC between 0.02 and 0.05, (2) is over age 21 at the time of the expungement request, (3) has not been convicted for any other DUI offense while under the age of 21, (4) has paid any fines and has completed any requirements of his conviction, (5) has never held a commercial driver’s license, and (6) was not operating a commercial motor vehicle at the time he committed the offense.

An eligible offender may request expungement by filing form JDF-305, available here.

If your conviction does not qualify for expungement, you may have the option of requesting that your case be sealed. To speak with a knowledgeable attorney about your expungement options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is Original Jurisdiction?

Posted by Chelsey Dahm-Bradley - March 11, 2015 - Appeals, Civil Appeals, Criminal Appeals, Uncategorized, Wisconsin Supreme Court

Under normal circumstances, the pathway to a supreme court involves stops at a trial level court, and then an appellate level court. Because supreme court review is discretionary, many cases travel through the trial and appellate level courts, only to never achieve supreme court review.

In a very limited number of cases, however, an action may commence immediately in the supreme court. The ability of a state or federal supreme court to hear a case without the case moving through the trial or appellate level courts is through original jurisdiction.

In respect to the United States Supreme Court, original jurisdiction is governed by 28 U.S.C. § 1251. Under this statute, the United States Supreme Court has original and exclusive jurisdiction over controversies between two or more States. Additionally, this statute provides the United States Supreme Court with original, nonexclusive jurisdiction over the following types of cases:

(1) Actions in which one of the parties is an ambassador, other public minister, consuls, or vice consul of foreign states;

(2) Actions between the United States and a State;

(3) Actions by a State against the citizens of another State

Original jurisdiction also exists in state supreme courts. In state supreme courts, the procedure for utilizing original jurisdiction is determined by state statute. In Wisconsin, for example, a party who wishes to utilize original jurisdiction must file a motion to commence an original action in front of the Wisconsin Supreme Court. Then, a minimum of four justices must agree to hear the case. Similar to in the United States Supreme Court, the criteria for granting original jurisdiction in the Wisconsin Supreme Court are statutory.

It is important to remember that original jurisdiction is the exception, not the rule. To speak with a knowledgeable attorney about original jurisdiction, or the best way to get your case in front of the supreme court, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is E-Filing?

Posted by Chelsey Dahm-Bradley - December 3, 2014 - Uncategorized

Many courts have instituted an electronic system for briefs and other documents. While these courts still require paper copies of most briefs, they require an additional, electronic copy to be filed through their Web site.

In Wisconsin, for example, attorneys are required to file an electronic copy of briefs in the court of appeals and supreme court, but not in the circuit courts. Unrepresented litigants may electronically file their briefs as well, but are not required to do so.  To determine whether your case requires electronic filing, check the local court Web site, or call the clerk of courts.

The electronic filing web page for your local court will provide instructions for how to electronically file a document in your jurisdiction. Typically, this involves uploading a PDF copy of the brief, minus any appendix. Most courts require that the brief be e-filed on the same day that the physical copies are filed.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

How Will My Case Move Through The Courts?

Posted by Chelsey Dahm-Bradley - November 19, 2014 - Uncategorized

The Wisconsin Court System offers a wealth of helpful information on its Web site, www. wicourts.gov. One great piece of information is the chart, below, which shows how a case makes its way through the Wisconsin courts.

 

Will the Court of Appeals Reconsider my Case?

Posted by Chelsey Dahm-Bradley - November 5, 2014 - Uncategorized

Scales of JusticeIf you lose your case in the court of appeals, there is a mechanism through which you can ask the court of appeals to reconsider its order, prior to requesting review from the state supreme court. This is a called a motion for reconsideration.

In most cases, a motion for reconsideration is not appropriate. A motion for reconsideration is not an opportunity for a litigant to re argue his case because he is dissatisfied with the ruling from the court of appeals, or feels that the court failed to focus on what he believed to be a critical fact or argument.

Rather, a motion for reconsideration is only appropriate where the Court of Appeals misstated the material facts or applicable law. If this is the case, a motion for reconsideration is a better option than a petition for review with the state supreme court, because the state supreme court typically takes cases alleging an issue of statewide impact, rather than those that allege a factual error in the court of appeals.

If you think a motion for reconsideration is appropriate in your case, it is importnt to act quickly. In Wisconsin, for example, the deadline to file a motion for reconsideration is 20 days following the date of the appellate decision. Wis. Stat. § 809.30. Importantly, Wisconsin statute does not allow for the extension of this deadline.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What Happens if my Appeal is Denied?

Posted by Chelsey Dahm-Bradley - October 22, 2014 - Uncategorized

If your appeal is denied, your case isn’t necessarily over. In most cases, there are two more avenues to relief following the denial of an appeal:

  • A motion for reconsideration with the court of appeals
  • A petition for review with the state supreme court

A motion for reconsideration asks the appellate court to reconsider its recent decision. This motion is not an avenue for a litigant to delve further into a complicated legal issue, but rather to point out a mistake of fact or law made by the court of appeals that factored into its decision.

A petition for review asks the state supreme court to review the findings of the court of appeals. Unlike the Court of Appeals, the Wisconsin Supreme Court is not required to hear your case.

Whether you’d like to file a motion to reconsider, a petition for review, or both, it is important to check your local statutes for the deadlines and procedures for each. In Wisconsin, for example, a petition for review to the Wisconsin Supreme Court must be filed within 30 days after the appellate decision is reached. This deadline cannot be moved or extended.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is a Permissive Appeal?

Posted by Chelsey Dahm-Bradley - October 8, 2014 - Uncategorized

During trial level litigation, the trial court issues various non-final  — i.e., not disposing of the entire case — orders. In most instances, non-final orders cannot be appealed until the trial court disposes of the entire case. When waiting to appeal a non-final judgment or order may be problematic, a party may request that the appellate court consider the non-final judgment in a interlocutory, or permissive appeal.

The court is not required to hear a permissive appeal and, in fact, this type of appeal is highly disfavored. In 2013, for example, the Wisconsin Court of Appeals allowed only 15 of 128 interlocutory appeals to move forward.

Despite this, there are situations in which a permissive appeal would be appropriate. Wisconsin law, for example, indicates that a permissive appeal would be appropriate where it would:

  1. Materially advance the termination of the litigation or clarify further proceedings in the litigation;
  2. Protect the petitioner from substantial or irreparable injury; or
  3. Clarify an issue of general importance in the administration of justice

Wis. Stat. § 808.03(2). Local statutes will determine the procedures and deadlines for requesting a permissive appeal. If granted, a permissive appeal will proceed as though it were a ‘normal’ appeal. Proceedings in the trial court will not be automatically stayed while a permissive appeal is pending, however parties can request such a stay.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

What is a Petiton for Review?

Posted by Chelsey Dahm-Bradley - September 24, 2014 - Uncategorized

For most litigants who receive an adverse decision in their state trial and appellate courts, the last opportunity for relief is in the supreme court. However, unlike the trial and appellate courts, the supreme court is not required to hear your case. Rather, you must request review by filing a ‘Petition for Review.’

A Petition for Review provides an overview of the facts of the case, and the issues for which the petitioner is requesting supreme court review. After you submit a petition for review, the opposing party may submit a response indicating why review is unnecessary. The petitioner may file a reply to this response, however in most jurisdictions, this is not required.

Local statutes will indicate what types of issues are best suited for supreme court review. Often, these are issues that (1) present a significant question of law, (2) demonstrate a need for a new or changed policy, or (3) would help to develop, clarify, or harmonize the law in a particular area.

Importantly, the deadline for a petition for review begins to run when the final order is entered in the court of appeals. In most jurisdictions, this deadline cannot be extended.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).