Office of Crime Victim Services

Victims' Rights and Criminal Appeals

Table of Contents

♦ Introduction

♦ What is an Appeal?

♦ The Wisconsin Appellate Court System

♦ Who Can Appeal?

♦ Who Represents the State on Appeal?

♦ Who Represents the Defendant on Appeal?

♦ Criminal Appellate Procedure

♦ Review by the Wisconsin Supreme Court

♦ Release on Bond During Appeal

♦ How Long Does an Appeal Take?

♦ Possibility of Post-Appeal Action

♦ Victim Appellate Notification Services (VANS)

♦ Glossary

In 1993, Wisconsin took a major step forward in protecting victims' rights. The Wisconsin Victims' Rights Amendment spells out the basic protections that will be afforded to crime victims. These rights include assistance at all stages of the court process, including services to crime victims during a criminal appeal.

Crime victims now have the opportunity to be notified when a case is appealed. Victim services are also available during an appeal. Depending on the particular crime and circuit court the appeal originated in, victims should contact either the district attorney's office, the county victim/witness coordinator, or the Wisconsin Department of Justice, Office of Crime Victim Services.

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Sometimes an appeal may be taken before the case even goes to trial. A party can appeal unfavorable pre-trial rulings (like suppression of evidence). These are called "interlocutory appeals" and the case is put on hold until these questions are answered. As most interlocutory appeals are permissive, appellate courts often do not accept them.

Generally, the issues raised on appeal involve complex interpretations of the law. Occasionally, appeals involve questions of fact%%what actually happened %%but this does not occur often because appellate courts must usually rely on the factual determinations that the circuit court or jury has already made.

An appellate court is by definition a court that reviews decisions made by other courts. It is not the place to start a case or introduce new evidence. The appellate court considers only the written record of what occurred in the circuit court. This means that victims and witnesses will not need to testify during the appeal.

The final appellate court decision will either: (1) affirm, (2) reverse, or (3) modify a judgment or order of the lower court. Sometimes a criminal prosecution will be terminated if the judgment or order is reversed, but usually the case will be sent back to the circuit court for further proceedings such as a new trial.

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Each district has three or four elected judges who sit singly or in panels of three depending on the kind of case being heard.

Though there are four districts, the Court of Appeals functions as one court with published decisions in one district binding over the others. All appeals are filed through a single clerk of courts in Madison. The county from which the appeal originates determines the district to which the case is assigned.

On the rare occasion that the Court of Appeals requests to hear oral arguments, those proceedings can take place in a county in which the court has chambers or, if it is a single judge case, the county where the case originated.

The Supreme Court has seven elected justices who participate in deciding every case heard in the Supreme Court. Oral arguments are more frequent here and are held in the Supreme Court Chambers, located in the State Capitol in Madison.

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Appeals by the state after certain circuit court judgments (such as not guilty) are limited by the United States Constitution. The 5th Amendment's "double jeopardy" clause protects against multiple prosecutions for the same offense. Therefore, if the defendant is acquitted, the state cannot appeal.

There are limited instances, however, when the state can appeal. The state may appeal court rulings which grant a defendant post conviction relief (e.g., the reversal of a conviction). It may also appeal circuit court decisions on certain pre-trial motions (e.g., the suppression of evidence).

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Felony appeals are heard by the Court of Appeals three-judge panel. The Department of Justice's Criminal Appeals Unit represents the State in most three-judge appeals.

The Department of Justice represents the State in all Supreme Court cases.

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Those defendants who can afford to pay for an attorney may hire the attorney of their choice. Those defendants who are determined to be indigent (unable to afford an attorney) are appointed an attorney by the State Public Defender's office.

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I.Notice of Intent to Pursue Post conviction Relief

At the time of sentencing, the circuit court must inform the defendant ofhis or her right to pursue post conviction relief. post conviction relief can be either: (1) "post conviction motions" which are filed in the circuit court or (2) an "appeal" which gets assigned to a District Court of Appeals.

If the defendant is considering requesting a review of any decisions made by the circuit court, he or she must file a "notice of intent to pursue post conviction relief." This must be done within 20 days of the sentencing and basically preserves the defendant's right to seek post conviction relief. In many instances a defendant who files this notice will not continue to pursue the appeal.

II.Motions for post conviction Relief

The defendant may choose to file motions seeking post conviction relief before taking an appeal. Examples of these motions are a motion to withdraw a plea of guilty, a motion to reverse the conviction, or a motion to modify the sentence. The circuit court must decide these motions within 60 days or they are automatically denied.

Because these motions are heard in the circuit court, the state is represented by the district attorney and the Department of Justice is not yet involved.

III.Notice of Appeal

The defendant can appeal the conviction, any unfavorable rulings on motions, or both. The defendant must first file a "notice of appeal." It is at this point that the case is assigned to a District Court of Appeals.

The defendant, now also referred to as the "appellant," must file an "appellant's brief." A brief is a written legal argument which is meant to convey a party's case to the court. On the average, it takes about one year for a case to move from the sentencing to the filing of the appellant's brief.

This brief is the point at which the Department of Justice becomes formally involved as the "respondent," representing the state. An assistant attorney general is assigned the case, the district attorney is asked for his or her input, and a "respondent's brief" is filed. The respondent's brief is an answer to the challenge made by the defendant. The defendant may file an "appellant's reply brief" before the Court of Appeals considers the case.

Appeals are almost always decided on consideration of the briefs and written record only. Occasionally, the Court of Appeals will call for oral arguments. These are legal arguments given by attorneys and are meant to answer any questions that the judge may have. Parties try to persuade the court to decide a question of law in favor of their side. Oral arguments generally last about an hour.

IV.Court of Appeals Decision

From the time the Court of Appeals receives the briefs, it may take several months or more to make a decision. Victims who are registered for appellate notification will be informed of what the decision is and the effect it has upon the original judgment and sentence.

In over 90% of appealed criminal cases, the decision favors the criminal conviction.

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On appeal of misdemeanor convictions, because the length of the sentences (less than one year) are shorter than the average length of appeal (more than one year), convicted defendants are usually released on bond. This is to prevent situations in which the defendant serves his or her entire sentence and is released from jail, only to win the case on appeal.

Defendants convicted of a felony may be released only upon the judge finding that: the defendant poses no threat to the community, victims or witnesses; the defendant will not fail to appear; and the appeal is being taken in good faith and not for delay. Very seldom are convicted felony defendants released on bond.

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There may be times when it appears that there is nothing happening with a case. Yet, there are a considerable number of procedural steps which must occur with each subject to time limits that may be extended. A large record needs to be compiled, complex and lengthy briefs (up to 50 pages each) must be written, and one party may wait months for another to complete a step. This is just a sampling of the events that must take place before the Court of Appeals reads the briefs, examines the record, conducts research on case law, discusses, and finally decides the case. Furthermore, in the interests of justice, fairness to both parties and a thorough handling of the issues, time extensions are often granted.

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Registered victims will be informed of: (1) the appeal; (2) whether an oral argument is scheduled; and (3) the final decision of the Court of Appeals and the effect it has on the circuit court judgment. Upon request, victim services will be provided through the district attorney's office, the victim/witness coordinator or the Department of Justice, Office of Crime Victim Services. Victim services include the option of being accompanied to the oral argument by a victim services professional.

For further information regarding Wisconsin appellate procedure or victim services during an appeal, please feel free to contact your county's victim/witness assistance program or the Victim Resource Center

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