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Missouri Attorney General Jay Nixon

Frequently asked questions of the Criminal Division

Table of Contents

Appeals

What is an appeal?

After being convicted, a defendant may appeal to the Missouri Court of Appeals, claiming there was some legal error made during trial which affected the fairness of the trial. Some of the typical claims of error made by defendants include:

  • That the State did not present enough evidence to prove all of the elements of the crime;
  • That there was a violation of the rules of jury selection;
  • That the court wrongfully allowed or did not allow certain evidence to be admitted;
  • That there was a flaw in the instructions of law given to the jury; or
  • That the prosecutor said something unfair during closing argument.

The appeal is not a new trial, and the facts found during the trial which support the guilty verdict will apply to the Court of Appeals' decisions regarding the legal issues raised.

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How long does an appeal take?

From the time a defendant notifies the court in writing that he will appeal to the point where the Court of Appeals issues its mandate ending the appeal, the typical appeal will take about 12 to18 months. More complex cases may potentially take longer.

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What happens in an appeal?

The following steps occur in an appeal:

  1. Notice of Appeal: A defendant has 10 days from the date of final sentencing to file a notice of appeal in the circuit court. That notice will be sent by the circuit court to one of the three Courts of Appeal, depending on which county the trial was held: The Western District in Kansas City, the Eastern District in St. Louis, or the Southern District in Springfield. The “Jurisdiction” link at each Court's Web site shows which counties are in each Court's jurisdiction.
    A few cases — such as when the defendant receives the death penalty or where the defendant claims a law is unconstitutional — will be filed directly in the Missouri Supreme Court.
  2. Record on Appeal: Within 90 days of filing the notice of appeal, the defendant (now referred to as an appellant) will file the record on appeal. The record on appeal consists of a legal file (documents filed with the circuit court during the original proceeding) and the transcripts of the trial, sentencing hearings, and any other hearings which are needed to resolve the issues on appeal. The court may grant the appellant an extension of time if the appellant has a reason for asking, such as if there is a delay in the court reporter completing the transcript.
  3. Appellant's Brief: The appellant's brief, which is filed first, raises the issues he or she wants to raise on appeal. The appeal will almost always be limited to these legal issues. The appellant has 60 days to file the brief, although the court may extend that amount of time if requested.
  4. Respondent's Brief: The state (also referred to as the respondent) will file a brief answering the claims raised by the appellant. The Attorney General represents the state in all felony appeals. In appeals from misdemeanors, the prosecutor from the county where the case was tried will represent the state. This brief is due 30 days after the appellant's brief is filed, although the court may extend that amount of time if requested.
  5. Appellant's Reply Brief: The appellant may, but is not required to, file a reply brief replying to arguments made in the respondent's brief. This brief is due 15 days after the respondent's brief is filed, although the Court may extend that amount of time if requested.
  6. Submission of the Case: Following the completion of all of the briefs, the court will schedule the case for submission, meaning it is assigned to a panel of three judges to decide the issues raised on appeal. A case is submitted one of two ways. The court can schedule an oral argument at which attorneys for each side will present a brief argument about the points raised on appeal and the court will ask the attorneys any questions it has about the issues. The court can also submit the case “on the briefs,” meaning the court will make its decision based on the arguments raised in the briefs without any oral argument.
  7. Opinion: After the case is submitted, the judges take the case under consideration and decide how to resolve the case. One of the judges then writes an opinion, which explains the legal reasons why the Court reached the decision it did. The Court then issues the opinion, notifying the parties of its decision and reasoning. The issuing of an opinion can take as little as a week or as long as several months. The Eastern District and Western District issue opinions every Tuesday morning, the Supreme Court issues opinion on Tuesday afternoons one or two times per month, and the Southern District may issue opinions at any time.
  8. Post-Opinion Motions: The party who loses the appeal may file post-opinion motions. First, the party can file a motion for the court to rehear the case and reconsider its decision. This is not usually granted, but if it is the court will typically issue a new opinion with no other briefs or argument being made. Second, the party can ask the Court of Appeals to transfer the case to the Missouri Supreme Court. This will only be granted if there is some issue of “general interest or importance” which the Court believes the Supreme Court needs to resolve. These two requests are usually made in the same motion, and must be filed within 15 days of the opinion being issued. If the party loses both the those requests, the party has 15 days to make an Application for Transfer to the Missouri Supreme Court, claiming that the case raises an issue of general interest or importance. These motions are also rarely granted. If transfer is granted, the parties are given 20 days each to file a substitute brief and the Court schedules an oral argument (unless a prisoner representing himself or herself is one of the parties). The Court may then issue its own opinion, which controls over the Court of Appeals opinion, or it may retransfer the case to the Court of Appeals, meaning that the Court of Appeals opinion will control. The Supreme Court also permits a motion for rehearing within 15 days, although these are also rarely granted.
  9. Mandate: After the time ends for filing a post-opinion motion or the Missouri Supreme Court denies an application for transfer, the Court issues a mandate to the Circuit Court, which officially ends the appeal.

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If I am a crime victim, how may I be kept informed of the progress of an appeal?

Victims of crime are entitled to be kept informed of the progress of an appeal. If the case is a misdemeanor, contact the office of the prosecutor who tried the case to notify them that you want to be kept informed. If the case is a felony, you need to notify the Attorney General's Office in writing that you want to be kept informed. You can do so by submitting this form online or by printing out this form, completing it, and sending it to the address on the form.

You can also keep track of the case progress on the Internet through Case.net, the State's case tracking system. Click on litigant name, select the proper Court from the drop-down menu, enter the appellant's first and last names, and click on the appropriate case number. Select "Docket Entries" on the next page and follow the instructions, which will then show you everything that has occurred during the appeal so far.

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As a crime victim, may I attend the oral argument in the Court of Appeals? May I make a statement?

Oral arguments are open to the public, so you may attend. You will be notified of the time and place of the argument if you have made a written request to be kept informed about the case. Each of the courts also has dockets of cases to be argued on their Web sites: Western District, Eastern District, Southern District, and Supreme Court.

Statements from people other than the attorneys and judges are not permitted at the oral argument. If you made a statement at trial or sentencing, however, that is included in the trial transcript, which the Court will read.

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Will the defendant be at the oral argument?

If the defendant is free on bond or received a sentence of probation, he or she may attend oral argument. If the defendant is incarcerated, however, he or she will not be at the oral argument.

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Can the state appeal if the defendant wins at trial?

Generally, no. If the jury (or judge, if there is no jury) finds the defendant not guilty after a trial, the Constitution prevents the state from seeking an appeal. The state can appeal under other extraordinary circumstances, such as when a court grants a defendant's motion to suppress evidence, when a court finds that the defendant is not competent to be tried, or when the court grants a judgment of acquittal prior to the end of trial or after the jury finds the defendant guilty.

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Post-Conviction Actions

What is a motion for post-conviction relief?

After the direct appeal is over, or if the defendant did not take a direct appeal, a defendant may file a motion for post-conviction relief, often referred to by its initials, PCR. The defendant is limited to the claims that the trial court had no jurisdiction to convict him or her; that his or her sentence exceeds the maximum possible for the crime; or that the conviction or sentence violates constitutional or state law. Most often, this is a proceeding where a defendant may challenge the actions of his or her attorney at trial and on direct appeal.

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Where does the post-conviction action take place?

The post-conviction proceeding will occur in the county where the defendant was tried or pled guilty. The state is represented by the prosecutor who handled the trial or plea.

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What happens in a post-conviction action?

  1. Pro se Motion: The defendant files a motion for post-conviction relief. This first motion is called a pro se (pro SAY) motion, as it is almost always filed by the defendant himself rather than through an attorney. The defendant must file this motion either 90 days after the appellate court mandate concluding the direct appeal if the defendant filed a direct appeal, or 180 days after being delivered to the Department of Corrections to serve his sentence if he or she did not appeal the conviction.
  2. If the defendant (now called the movant) is indigent, the motion court will appoint him counsel and counsel has up to 90 days to file an amended motion. The amended motion will contain the only issues that may be raised during the action.
  3. The trial court (now called the motion court) then will decide if an evidentiary hearing is needed based on what claims are properly raised. If a hearing is needed, the court will hold one. The movant may or may not be at this hearing, depending on the decision of the motion court.
  4. The motion court issues "Findings of Fact and Conclusions of Law" declaring its decision and explaining the legal reasons for it.
  5. The losing party then may appeal. The appeal is the same as for the original appeal described above, except that the movant has only 30 days to file the record on appeal if only a legal file is required, or 60 days if an evidentiary hearing transcript and a legal file are required.

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If I am a crime victim, how may I be kept informed of the progress of a post-conviction proceeding?

To be kept informed of the post-conviction proceeding, you will need to contact the prosecutor's office which handled the original trial or plea. If there is an appeal, the state is represented by the Attorney General. If you wish to be kept informed of the progress of that appeal, you will need to submit a new request (either online or in the mail) to the Attorney General's Office, even if you sent in such a request for a direct appeal.

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Federal Habeas Proceedings

What is a federal habeas proceeding?

After a defendant completes his direct appeal and his post-conviction process in state court, he can challenge the state courts' federal constitutional decisions in federal court. This type of petition is authorized by federal law and is referred to as a federal habeas corpus petition. The respondent in these cases is the superintendent of the prison where the defendant is held. The Attorney General's Office represents the superintendent in felony cases.

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Where does the federal habeas proceeding take place?

Unlike the appeal and post-conviction proceeding, which depends on where the defendant was tried, the federal habeas proceeding is filed in the United States District Court either in St. Louis (Eastern District of Missouri) or in Kansas City (Western District of Missouri), depending on the location of the correctional center in which the defendant is being held.

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What happens in a federal habeas proceeding?

  1. The defendant (now often referred to as the petitioner) files his petition in the proper court. The petitioner has one year after his direct appeal becomes final to file his federal habeas corpus petition. The time in which the petitioner pursued state post-conviction relief does not count toward this one-year limit.
  2. The federal judge assigned to hear the case will then order the state to respond to the claims raised in the petition, and the defendant has the opportunity to reply.
  3. The federal judge decides whether an evidentiary hearing is necessary. Under the federal habeas corpus law, evidentiary hearings are rare. The standard a defendant must meet in order to obtain federal relief is greater than what he or she would have to show in state court on direct appeal or in a post-conviction proceeding. If a hearing is deemed necessary, the court will hold that hearing.
  4. The federal judge will rule on the case. There is no time limit as to when the judge will rule. Cases may last anywhere from three months to more two years depending on the judge and the complexity of the case.
  5. The losing party may appeal to the United States Court of Appeals for the Eighth Circuit in St. Louis. If a defendant loses, the defendant must obtain a "certificate of appealability" from either the federal district court or the Eighth Circuit Court of Appeals in order to proceed. This certificate ensures that the issued appealed may have merit. The state does not need a certificate.
  6. If the state appeals, or if a defendant obtains a certificate of appealability, the parties brief and argue the case before the Eighth Circuit Court of Appeals. The appellant (who lost in the district court) normally has 30 days to file the record and then thirty days to file its brief. The respondent (who won in the district court) then has 30 days to file a brief, and the appellant then can file a reply brief.
  7. If argument is held, it is typically in the Thomas F. Eagleton Courthouse in St. Louis and is open to the public. Three judges will decide the case.
  8. The Eighth Circuit will issue an opinion in the case. After the opinion is issued, the losing party may ask the full court to hear the case. This is often referred to as the en banc court. If the en banc court decides to hear the case, the parties will argue before all eleven judges of the Court of Appeals.
  9. The losing party then may file a petition for writ of certiorari in the United States Supreme Court. The Supreme Court may then either hear the case or deny the petition. The U.S. Supreme Court rarely grants this relief. The federal habeas corpus proceeding is over at that point.

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