Criminal Sentencing
May 10, 2023
Defacto Custodian Defined
July 10, 2023
Your Right to Appeal
Section 115 of the Kentucky Constitution provides that in all criminal cases there shall be allowed, as a matter of right, at least one appeal to another court for defendants.
The Commonwealth may not appeal from a judgment of acquittal other than to seek a certification of law.
Capital Cases
If a death sentence has been imposed, the law provides for mandatory review of the sentence by the Kentucky Supreme Court - even if no appeal is taken from the judgment.
A judgment imposing a sentence of death, life or 20 years or more is appealable directly to the Kentucky Supreme Court, and all other appeals are taken to the court immediately above the court of original jurisdiction in the case.
The Timing of an Appeal
Appeals in criminal cases may be taken at several points during trial proceedings:
- Interlocutory orders can be reviewed in some limited circumstances
- Bail can be reviewed both pre and post-conviction
- Appeals of final judgments may be taken as a right of either a defendant or the prosecution
An appeal of right is always available when the defendant pleads not guilty. However, when the defendant pleads guilty, an appeal of a guilty plea is available only under certain circumstances. Moreover, a defendant may waive the right to appeal in exchange for sentencing concessions.
The Appeal Process
Once an appeal is initiated there are three important steps for it to progress through:
- Making a record – for there to be something to appeal, it must be noted in the record. Defense counsel is responsible for insuring that at every step in the criminal trial process the record is preserved for an appeal.
- Appellate Briefs – the most important part is the appellate brief that addresses all issues that are being appealed and argues why they should be overturned. There exist very specific rules regarding the color, size, number of pages, font, and structure of an appellate brief.
- Oral argument – The appealing party may open and close the argument. The time allowed for oral argument is 15 minutes for each side, “unless otherwise directed.”
After these steps are concluded the Appellate Court will rule on the appeal and the case will either be upheld or overturned and go back to the trial court for further proceedings.
