In South Carolina, in order to appeal a conviction and sentence in the Circuit Court, your criminal appellate attorney must first file a notice of appeal within ten days of the judgement. Once the notice has been filed, the transcripts from the trial and any important pretrial hearing should be ordered from the court reporter. Your South Carolina appellate attorney then informs the South Carolina Court of Appeals that the transcripts have been received and a briefing order is issued by the court.
When reviewing the issues to be raised on appeal, it is important to determine if the issue was preserved in the trial court. In order for an issue to be preserved, counsel must have made an objection when the issue is raised at trial. In other words, the issue must have been brought to the trial judge’s attention. If the issue is not preserved, the appellate court reviews the matter using the standard of review of plain error. The court must decide to recognize the error under these circumstances and only does so when the error is evident and clearly prejudicial and effected the outcome of the case.
It is best to raise issues that have been preserved in the trial court when preparing an appeal. Once the initial brief is filed, the State has the opportunity to file an answer brief. When the answer brief is filed, the appellant may decide to file a reply brief to address the arguments made in the state’s answer brief. The final briefs are then filed and the appellant must wait for the court to render a decision.
The court may decide to hear oral arguments if they have questions about the briefs that were filed or want to hear more arguments on a particular issue. If oral arguments are granted, your South Carolina appellate lawyer then appears before a panel of three judges and engages in a question and answer session with the appellate judges. The court usually issues an opinion thirty to sixty days after oral arguments are heard.
Once the decision is rendered, either side may petition the South Carolina Supreme Court. This document is called a Writ of Certiorari, in which an appellate attorney in South Carolina requests the South Carolina Supreme Court to hear the case. It is important to note that if an individual wins an appeal in the Court of Appeals and the State decides to petition the South Carolina Supreme Court by filing a Writ of Certiorari, the appellant will not be transferred back to the circuit court until the court makes a ruling on that petition. However, an appellate attorney can file a motion for bond pending an appeal.
If the court reverses an appellant’s conviction, the case is generally remanded back to the Circuit Court for a new trial. In some cases, the appellant’s conviction is unchanged, but the sentence is over turned. In those instances, the appellant goes back to the Circuit Court in order to be re-sentenced by the trial court with instructions by the Court of Appeals. If you have questions about the appellate process in South Carolina, please contact The Mace Firm.