direct appeal from criminal conviction in Wisconsin
Q: What is a direct appeal?
A: A direct appeal in Wisconsin is an appeal by right. It is guaranteed by law to all persons convicted of a crime in Wisconsin. As with any appeal, it is a process by which the events that occurred during the litigation of your case are reviewed for legal errors. If any such errors occurred, then an appeal allows you to seek a remedy for those errors.
Q: How do I start the appellate process?
A: After sentencing, your trial attorney has 20 days to file a document called a Notice of Intent to Pursue Postconviction Relief, also known as an "NOI". That document initiates the direct appeal process. By completing the NOI, your attorney is telling the court and the State - on your behalf - that you want to begin the appellate process. Simply filing an NOI does not mean that your have to appeal or that you are 100% committed to an appeal. Instead, it opens the door to that possibility.
Q: What happens after the Notice of Intent to Pursue Postconviction Relief is filed?
A: The clerk of court sends materials to your retained counsel within 5 days of receiving the NOI. Retained counsel has 30 days from the date the NOI was filed to request additional materials from the court and court reporters.
Q: What happens when my appellate attorney gets all the materials from the circuit court?
A: Once all the requested documents are received, your attorney will have 60 days to review the court record and transcripts for errors, meet with you to discuss your goals and options, and conduct any investigation that is necessary. Following that file review, your attorney will advise you about what steps should be taken next.
Q: What happens after my attorney reviews the court record and transcripts?
A: That is largely up to you and your attorney. The decision whether to proceed on appeal is dependent upon a number of factors that must be counseled based on the facts specific to every case. However, the timelines associated with this process are set by statute.
Q: What is a postconviction motion?
A: Any motion presented to the trial court after your conviction can be interpreted as a postconviction motion. Sometimes this is the best choice for a person challenging their criminal case. However, that choice should be made in consultation with counsel.
Q: What happens after the Court of Appeals issues a decision?
A: If you are unsuccessful on direct appeal, you have the opportunity to petition the Wisconsin Supreme Court for review of the Court of Appeals' adverse holding. That must be filed within 30 days of the date on which the Court of Appeals issued its decision. The failure to comply with that 30 day deadline is a jurisdictional error that will deprive the Supreme Court of jurisdiction. In other words, it means that the Supreme Court won't hear the case.
Q: What happens if the Wisconsin Supreme Court takes my case?
A: The Wisconsin Supreme Court does not have to take your case. It may, but review is granted in less than 10% if the cases that request it. If review is granted, there is another round of briefing and then oral argument before the court issues a decision.
Q: What happens after the Wisconsin Supreme Court decides my case?
A: Once the Wisconsin Supreme Court has decided not to take your case or has accepted your case and issued a decision, you have additional appellate rights. You may ask the U.S. Supreme Court for review. You may file a Wis. Stat. § 974.06 collateral attack. You may also seek habeas relief from the federal courts. Those are not discussed in this, as they exceed the scope of a direct appeal. However, there are VERY STRICT deadlines and procedural rules associated with federal review of a state court conviction. If your direct appeal has concluded and you want to again challenge your conviction, it is VERY important that you consult with an attorney who is knowledgeable about those areas of practice. It is VERY dangerous to your rights to attempt to pursue those types of claims on your own.
What if I have more questions?
A: As with all legal matters, you are best served addressing any specific questions to a lawyer who can tailor answers to your questions about your particular case. The information above was offered simply to help you understand in a very general way the rules that apply to all persons considering an appeal.
To have your case-specific questions answered, we recommend you contact the firm to set up an initial consultation so we can determine whether the firm can be of any assistance to you.
A: A direct appeal in Wisconsin is an appeal by right. It is guaranteed by law to all persons convicted of a crime in Wisconsin. As with any appeal, it is a process by which the events that occurred during the litigation of your case are reviewed for legal errors. If any such errors occurred, then an appeal allows you to seek a remedy for those errors.
Q: How do I start the appellate process?
A: After sentencing, your trial attorney has 20 days to file a document called a Notice of Intent to Pursue Postconviction Relief, also known as an "NOI". That document initiates the direct appeal process. By completing the NOI, your attorney is telling the court and the State - on your behalf - that you want to begin the appellate process. Simply filing an NOI does not mean that your have to appeal or that you are 100% committed to an appeal. Instead, it opens the door to that possibility.
Q: What happens after the Notice of Intent to Pursue Postconviction Relief is filed?
A: The clerk of court sends materials to your retained counsel within 5 days of receiving the NOI. Retained counsel has 30 days from the date the NOI was filed to request additional materials from the court and court reporters.
Q: What happens when my appellate attorney gets all the materials from the circuit court?
A: Once all the requested documents are received, your attorney will have 60 days to review the court record and transcripts for errors, meet with you to discuss your goals and options, and conduct any investigation that is necessary. Following that file review, your attorney will advise you about what steps should be taken next.
Q: What happens after my attorney reviews the court record and transcripts?
A: That is largely up to you and your attorney. The decision whether to proceed on appeal is dependent upon a number of factors that must be counseled based on the facts specific to every case. However, the timelines associated with this process are set by statute.
- If a postconviction motion is selected as the appropriate avenue of relief and your counsel files one, the circuit court has 60 days to issue a decision.
- If an appeal to the Court of Appeals is deemed appropriate, a Notice of Appeal must be filed in the circuit court. Thereafter, the circuit court has 40 days to send all paperwork to the Court of Appeals. After that, briefing begins in the Court of Appeals and lasts, on average, approximately 120 days or 4 months. Once the case is fully briefed, it is reasonable to expect a 6 month wait before the Court of Appeals issues a decision.
Q: What is a postconviction motion?
A: Any motion presented to the trial court after your conviction can be interpreted as a postconviction motion. Sometimes this is the best choice for a person challenging their criminal case. However, that choice should be made in consultation with counsel.
Q: What happens after the Court of Appeals issues a decision?
A: If you are unsuccessful on direct appeal, you have the opportunity to petition the Wisconsin Supreme Court for review of the Court of Appeals' adverse holding. That must be filed within 30 days of the date on which the Court of Appeals issued its decision. The failure to comply with that 30 day deadline is a jurisdictional error that will deprive the Supreme Court of jurisdiction. In other words, it means that the Supreme Court won't hear the case.
Q: What happens if the Wisconsin Supreme Court takes my case?
A: The Wisconsin Supreme Court does not have to take your case. It may, but review is granted in less than 10% if the cases that request it. If review is granted, there is another round of briefing and then oral argument before the court issues a decision.
Q: What happens after the Wisconsin Supreme Court decides my case?
A: Once the Wisconsin Supreme Court has decided not to take your case or has accepted your case and issued a decision, you have additional appellate rights. You may ask the U.S. Supreme Court for review. You may file a Wis. Stat. § 974.06 collateral attack. You may also seek habeas relief from the federal courts. Those are not discussed in this, as they exceed the scope of a direct appeal. However, there are VERY STRICT deadlines and procedural rules associated with federal review of a state court conviction. If your direct appeal has concluded and you want to again challenge your conviction, it is VERY important that you consult with an attorney who is knowledgeable about those areas of practice. It is VERY dangerous to your rights to attempt to pursue those types of claims on your own.
What if I have more questions?
A: As with all legal matters, you are best served addressing any specific questions to a lawyer who can tailor answers to your questions about your particular case. The information above was offered simply to help you understand in a very general way the rules that apply to all persons considering an appeal.
To have your case-specific questions answered, we recommend you contact the firm to set up an initial consultation so we can determine whether the firm can be of any assistance to you.