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Legal Options for People After They Have Been Convicted of a Crime


December 24, 2005

There are several legal paths a person can go down after they have been convicted of a crime. Some of these paths include: post conviction relief petitions, appeals, sentence modifications, and petitions for early termination of probation.

Post Conviction Relief Petition

A “Post Conviction Relief Petition” can be filed in three cases. These include: if a defendant believes their legal counsel as insufficient—more often the case with public defenders; there has been new evidence found to show that they are innocent; or if the law has changed in a way that might change the outcome of the case.

There are a few restrictions on when these can be filed. Either, they will have to be filed within 90 days of sentencing or within 30 days of the last appeal that they filed. These restrictions do not apply in cases where new evidence comes to light. Usually these are filed in regards to felony cases, but sometimes people do it on misdemeanor charges where they served no prison time simply because they want to try to get a clean criminal record.

The most common instance of a Post Conviction Relief Petition being filed is when the legal counsel was ineffective. Should an attorney not interview witnesses or fail to present expert witnesses, the conviction may end up being reversed. At this point, the defendant will either be given a plea agreement, completely have the charges dropped, or end up going back on trial with a new criminal lawyer. Oddly enough, there have been cases in many states where a conviction has been reversed and the defendant went back on trial only to be sentenced to an even longer prison sentence than they had originally.

A second option for someone after a conviction is to go through with a post conviction appeal. Within 14 days of being sentenced for a crime, the convict will be able to file a “Notice of Appeal” that is filed alongside what is called a “Designation of Record.”

At this point, the court will give the appellant a timeline for when they have to file their “Appellant’s Brief.” Once the brief is filed, the state will answer with a “Respondent Brief,” and then at the end of the process the defendant will be able to file a final “Reply Brief.” Lastly, a judge will decide whether to simply rule based on the written briefs, or whether to set up an oral argument where a defense attorney and a prosecutor debate the case in front of a judge.

Motion to Modify Sentence

Another form of appeal is the “Motion to Modify Sentence” or a “Motion to Modify Probation.” These can be filed at any point following the original sentencing of a defendant. These motions can vary greatly depending on the intent of the defendant. Sometimes, a defendant will be filing it in order to have their sentence reduced or completely ended, and in other cases it will be because a defendant needs a reduction of their probation fee because they are struggling to afford it. In order to get the convict’s sentence reduced or probation modified, the lawyer will employ a few particular strategies. They will try to get their probation officer to inform the judge of the person’s good behavior as well as including letters from family, friends, or an employer that are indicative of their good character. The strategies employed by a defense can get as nuanced as providing a judge with color copy photos of the defendant so that the judge sees the humanity in them more than just as a convicted criminal. In some cases with these strategies, a jail term can be completely “deleted.”

The last type of post-conviction petition we will look at is a petition for early termination of probation. In many states, if someone has served over half of their probation term, it is possible to have the rest of that term eliminated entirely. Sometimes, it can be done far earlier than the halfway point even. If a person has been sentenced to lifetime probation, they should spend at least 7 years on probation before filing a petition for early termination. Though these petitions can be made earlier in a lifetime probation sentence, it is more difficult to have them approved. In standard probation cases, it is best to have restitution fully paid before filing the petition, as well as fines and fees. Those without probation violations are usually able to have their probation terminated before the end of the sentence.

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A key strategy that law firms will use to get a probation term eliminated is in order to create rapport with a probation officer. If the probation officer views the person in a positive light, it will be easier to convince a judge that they do not require probation for as long as the initial sentence implied. Like with a motion to modify a sentence, the legal team will get character related letters from their family and friends. The defendant can also write a statement that goes directly to the judge which will allow them to explain their feelings regarding their sentence in a way that is more personal.

If you end up being convicted of a crime you should speak to an attorney about the options that you have to petition the state after your conviction. Even if the conviction occurred in the past and you are off probation and out of jail, it can still be possible to have a crime removed from your record if you can provide evidence of your innocence. Consulting a lawyer will be a key step to seeing how to best move forward post-conviction.

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About the Author

At the Law Offices of Top Gun DUI Defense Attorney Myles L. Berman, our experienced team of DUI / Drunk Driving defense lawyers are dedicated to aggressively defending people arrested for DUI.

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