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What is a Direct Criminal Appeal?

Written by Brooke Elvington, Esq.

Tampa, Florida Criminal Appeals Lawyer


(Copyright 2016)


(Article personally written by Ms. Elvington, and may not be reproduced without express written authorization)


A skilled criminal defense attorney develops a theory of defense and delivers that theory to the jury in a way that is both common sense and persuasive.  Likewise, a skilled criminal appellate attorney crafts claims of legal error and delivers those claims to an appellate judicial panel in a way that provides the court with the law applicable to the issue, and that empowers the court to grant relief.  


Possible Grounds for Direct Appeal:


Every criminal case is different, and there are a large number of possible errors that can be raised on direct appeal.  As explained in our article on the appellate process, the direct criminal appeal is limited to legal error.  


Common examples of legal error, or appellate issues, found in pre-trial proceedings are as follows:


  • The Court granted a search/arrest warrant without sufficient probable cause;
  • Evidence was seized as a result of an illegal stop, detention or arrest;
  • The Trial Court denied a
    • motion to dismiss
    • Stand Your Ground motion
    • request for self-representation
    • motion for continuance
    • motion to identify a confidential informant


Common examples of legal error, or appellate issues, found in trial proceedings are as follows:


  • Members of the jury were selected or rejected illegally;​
  • Evidence was either excluded or admitted improperly;
  • Trial Court limited the defense ability to cross-examine witnesses;
  • The Trial Court breached its position of neutrality;
  • The State failed to present sufficient evidence to prove the charge;
  • The Prosecutor used improper tactics during closing arguments;
  • Trial Court erred in instructing the jury;


Common examples of legal error, or appellate issues, found in sentencing are as follows:


  • The sentence itself is illegal;
  • The Court considered improper factors at sentencing -
    • ​the defendant's failure to accept responsibility
    • defendant's statements of innocence
    • uncharged criminal conduct
  • ​The Court improperly concluded that it lacked authority for a departure sentence


The criminal appellate attorney must comb through the entire appellate record to determine whether there is error, and if so whether the error is reviewable on appeal.


Can All Legal Error Be Appealed?


No.  Not all claims of legal error will be viable for direct appeal.  In general, legal error must be preserved by trial counsel to raise the claim on appeal.  This means that trial counsel is required to object to the error in front of the trial judge.  If the lawyer fails to do so, the appellate court may not be able to review the issue.  A skilled appellate attorney can evaluate the entire case to determine whether the error can be raised regardless of a trial lawyer's failure to preserve the issue.  


There is Legal Error, and it Can be Raised on Appeal - I Win, Right?


​Not necessarily.  An appellate court, in most cases, reviews a case not just for error, but for harmful error.  This means that even if the trial court erred in your case, unless that error negatively impacted the verdict, the Court, (in most cases), will not reverse.  The appellate attorney must be able to craft the legal argument in a way that the appellate court understands that the issue is both preserved and harmful.  This requires not only appellate knowledge and experience, but also the skill of persuasive writing.  


Why Choose Brooke Elvington Appellate Law?


Ms. Elvington handles every case personally.  Clients speak directly with Brooke - not a paralegal, intern or assistant.   She is an experienced trial attorney who dedicates her practice to criminal appeals and post-conviction cases.  Her litigation experience provides her with a unique ability to handle post-conviction work with a criminal trial attorney's perspective.  Ms. Elvington is an AV-rated appellate attorney, selected for inclusion into the Bar Register of Preeminent Women Lawyers by Martindale-Hubbell, and is ranked 10/10 from AVVO.  Ms. Elvington does not combine her experience with other attorneys, or other law firms.  She has personally handled more than 300 criminal appeals and post-conviction cases throughout the State of Florida.