Arizona Residents Should Understand The Difference Between Direct Appeals and Post-Conviction Relief

US Supreme CourtThis is the second post in my series on requesting post-conviction relief in Arizona. My last post served as an overview of topics I will be discussing in this series and stressed the need to contact an attorney if you or a loved one wishes to file for such relief (which is otherwise known as a petition for a writ of habeas or a Rule 32 PCR Petition). In this article I will discuss the difference between a direct appeal and a petition for post-conviction relief. This is an important topic due to the fact that many defendants do not understand the difference between the two.

Arizona defendants may only request a writ of habeas corpus or Rule 32 Relief under specific circumstances

An appeal and petition for post-conviction relief are not the same thing. Both occur after one has already been convicted in the Trial Court. Both processes, however, typically occur at different points in the process and involve different types of issues. An appeal typically precedes a habeas petition (otherwise known as a Petition for Rule 32 Relief) and can be handled by the same attorney who handled the matter in the trial court. A post-conviction relief petition, by contrast, typically is filed after an appeal is denied and typically has to be filed by a different lawyer. It is important to have a deeper understanding of these two case types.

Direct appeals are filed with the Appellate Court after one has been convicted. Appeals are a process by which one may claim that there were mistakes of law during the trial process. These alleged mistakes may include claims that pre-trial motions were incorrectly denied, claims that evidence should or should not have been admitted at trial, claims that objections were incorrectly overruled, etc. A defendant may not, however, use a direct appeal to claim that their criminal defense lawyer was ineffective. Ineffective assistance of counsel claims may only be filed as part of a post-conviction relief petition.

Arizona post-conviction petitions are often filed after an appeal is denied and are filed under Rule 32 of the Arizona Rules of Criminal Procedure. The most common reason such petitions are filed are for claims that the defendant’s prior lawyer was somehow ineffective, that there has been a change of law, or that the new evidence has emerged. The overwhelming majority of these claims relate to ineffective assistance of counsel. Arguments of ineffectiveness typically revolve around issues such as an attorney not filing certain motions, failing to investigate the case, not objecting to certain issues in Court, etc. These petitions are heard by the trial court – which means that the decision will often be made by the same Judge who presided over the trial.

Arizona defendants who wish to file for post-conviction relief must contact an attorney immediately

Arizona defendants who wish to file for post-conviction relief do not have time to waste. As I will explain in my next post, those who have been convicted have a very limited period of time during which they may file. f This means that one’s lawyer will have a limited amount of time in which they can analyze your trial record and determine which issues may be raised in your petition. Given that time is of the essence you should immediately contact an attorney.

In addition to Phoenix we represent defendants in other Maricopa County cities such as Mesa, Glendale, Scottsdale, Chandler, and Gilbert. We also assist Pima County residents in Tucson.

Author: Bretton Barber

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