Criminal Department

Appellate Procedure Following a Conviction at Trial

Direct Appeal

When a criminal defendant has been convicted of a criminal offense in Arkansas, he or she may, within thirty days, file a notice of appeal to the Arkansas Supreme Court or the Arkansas Court of Appeals. The rules of the Supreme Court contain guidelines for determining in which court a particular appeal must be filed.

The Criminal Justice Department of the Attorney General’s Office represents the State in the two appellate courts. The record of the trial, including all of the papers filed in the trial court, the exhibits presented at trial, and the written transcript of all trial testimony, is compiled and filed in the appropriate appellate court.

The defendant, now referred to as the "appellant," then files a "brief," in which he or she argues that errors occurred during the trial and that his or her conviction and/or sentence should be reversed. The Attorney General’s Office then files the State’s ("appellee’s") brief responding to the claims (or grounds of error) made in the appellant’s brief.

In due time, the case will be "submitted" to the appellate court for consideration and a decision. In some cases, the appellate court will hear oral arguments from the attorneys who prepared the briefs. After considering the case, the Court will announce its decision in a written opinion. The Court may "affirm," or uphold, the conviction and sentence; "reverse," or overturn, the conviction and/or sentence; or, in some instances, affirm some part of a conviction or sentence and reverse other parts of it.

Depending on the nature of the error, a case that is reversed may either be dismissed entirely or be "remanded" to the trial court for further proceedings, perhaps including a new trial. When a case is remanded to the trial court, the prosecuting attorney’s office will represent the State in the new proceedings there.

Rule 37 Appeals
After a defendant’s conviction has been affirmed, he or she may choose to file a petition for post-conviction relief in the trial court. These are commonly called "Rule 37" petitions, because they are authorized by Rule 37 of the Arkansas Rules of Criminal Procedure. In a Rule 37 petition, the defendant raises claims that, if valid, could entitle him or her to a new trial for reasons other than the claims of trial error raised on appeal. Most often, a Rule 37 petition asserts that the defendant’s trial attorney made errors that deprived the defendant of effective legal counsel at trial.

The trial court will often hold a hearing before deciding a Rule 37 petition, and the prosecuting attorney’s office represents the State at the hearing. If the trial court denies a Rule 37 petition, the defendant may appeal that decision to the Arkansas Supreme Court or to the Arkansas Court of Appeals. The Attorney General’s Office will again represent the State while the case is on appeal.

Petitions for a Writ of Certiorari

Finally, defendants can ask the United States Supreme Court to consider claims of constitutional error in their cases. They do so by filing for a "writ of certiorari." The Attorney General’s Office represents the State if the Supreme Court decides to accept the appeal.

Habeas Corpus Actions

If the defendant’s direct appeal is affirmed and/or Rule 37 relief is denied, the defendant might pursue habeas corpus relief in state and/or federal court. In both state and federal habeas corpus proceedings, the defendant is called "the petitioner." The State, represented by the Attorney General’s office, is called "the respondent."

State Habeas Corpus

A defendant pursues state habeas corpus relief by filing a petition in a state circuit court alleging that she is being detained without lawful authority. The defendant must file the petition in the circuit court located in the county where the defendant is incarcerated.

Arkansas recognizes two claims which may be raised in a state habeas corpus petition. A writ of habeas corpus will issue if it is shown either, (1) that the judgment recording the defendant’s conviction is invalid, or (2) that the trial court that imposed sentence lacked jurisdiction over the defendant’s case. The defendant must attach evidence to his petition showing probable cause to believe that she is being illegally incarcerated. The State responds to the petition and argues that the defendant has failed to show that the judgment of conviction is invalid or that the trial court lacked jurisdiction. Sometimes, a hearing is necessary to resolve the defendant’s claims. The circuit court reviews the defendant’s petition and the State’s response, then makes findings of fact and conclusions of law regarding the defendant’s claims.

If the circuit court denies state habeas corpus relief, the defendant has thirty days in which to file an appeal in the Arkansas Supreme Court. As with a direct appeal, the rules of the Arkansas Supreme Court contain guidelines for filing an appeal. The defendant becomes the "appellant" and files a brief arguing that the circuit court erred in failing to grant state habeas corpus relief. The State becomes the "appellee" and files a brief responding to the claims raised in the appellant’s brief. The appellate court considers the arguments made, sometimes hearing oral arguments in addition to the briefs, and then announces its decision in a written opinion.

The appellate court may affirm and uphold the circuit court’s denial of habeas corpus relief, reverse and overturn the circuit court’s decision, or, in some instances, remand the case to circuit court for further proceedings, perhaps including a hearing if one was not originally held.

If the Arkansas appellate court affirms the denial of state habeas corpus relief, the defendant can ask the United States Supreme Court to consider her claims. The defendant does so by filing for a "writ of certiorari." The Attorney General’s Office also represents the State when a writ of certiorari is requested.

Federal Habeas Corpus

Federal habeas corpus proceedings generally follow Rule 37 actions or state habeas corpus review. A defendant has one year from certain dates defined by federal law, the Anti-terrorism and Effective Death Penalty Act of 1996, in which to file a petition for federal habeas relief in a United States District Court. In some cases, after an initial review of the petition, the United States District Court will appoint a lawyer to represent a indigent defendant.

In the petition for federal habeas relief, the defendant (petitioner) argues that their conviction and/or sentence should be overturned because the conviction was obtained in violation of the defendant’s federal constitutional rights. The State (respondent) then responds to the defendant’s arguments and states why the conviction and sentence should be upheld. Normally, the State urges alternative reasons for why federal relief should be denied, including various procedural bases, for example, that a claim is foreclosed because the defendant did not present the claim to a state court before raising it in federal court, and may also argue that the defendant’s constitutional rights were not violated.
Both the defendant and State attach exhibits of previous state court proceedings, including trial, direct appeal, and Rule 37 and/or state habeas actions, to the petition and response. Sometimes, the United States District Court holds a hearing to resolve some or all of the defendant’s claims.

The District Court then reviews the petition, the response, the record of the state court proceedings, and the record of the federal hearing, if one was held, and decides whether to grant or deny the defendant any relief. The court will address each claim in a written decision. If the district court denies relief, the defendant may file for an appeal in the United States Court of Appeals for the Eighth Circuit.

If the Eighth Circuit grants the defendant’s request, the defendant again becomes the appellant and the State becomes the appellee. The defendant files a brief explaining why the district court wrongly denied federal habeas corpus relief. The State, through the Attorney General’s Office, files a brief arguing that the district court correctly denied relief. The Court of Appeals will often hear oral arguments in addition to the briefs. Afterwards, the Eighth Circuit considers the arguments made and issues a written opinion either affirming or reversing the district court’s decision. If the Court of Appeals affirms the district court’s decision, the defendant may petition the United States Supreme Court for a writ of certiorari.
Sometimes, the defendant is permitted to file a second or "successive" petition for federal habeas corpus relief. Generally, the petition will be dismissed if the defendant raises the same claims that were raised in a prior petition. If new claims are raised and the Eighth Circuit grants permission to file another petition, the process described above is again followed.