When Should You File an Appeal in a Criminal Case?

Criminal appeals are governed by strict deadlines and even stricter rules of preservation. Here is how to think about timing, what gets reviewed, and what does not.

The Basic Rule

In Illinois, the deadline to file a notice of appeal after a criminal conviction is 30 days. That deadline is set by Illinois Supreme Court Rule 606(b). Federal criminal appeals have an even tighter deadline of 14 days under Federal Rule of Appellate Procedure 4(b). Miss those windows, and the right to a direct appeal is generally lost.

That is the short answer. The longer answer is more useful. This article walks through when an appeal is appropriate, what gets reviewed, what does not, and how to think about timing in the broader context of a criminal case.

What an Appeal Is and Is Not

A direct appeal is a review of the trial court's record for legal error. The appellate court reads the transcripts, considers the briefs, sometimes hears oral argument, and decides whether the trial court applied the law correctly. The appeal is not a new trial. It is not a chance to introduce new evidence. It is not a place to argue that the jury got the facts wrong. The appellate court generally defers to the jury on factual questions and reviews only what was preserved in the record.

The kinds of issues that typically support a criminal appeal include:

• Evidentiary rulings that admitted evidence that should have been excluded, or excluded evidence that should have been admitted
• Jury instructions that misstated the law
• Denial of motions to suppress evidence on Fourth Amendment grounds
• Denial of motions to dismiss for speedy trial violations or other statutory grounds
• Prosecutorial misconduct, including improper closing argument and Brady violations
• Sufficiency of the evidence, though this is reviewed under a very deferential standard
• Sentencing errors, including miscalculation of the Guidelines in federal court or misapplication of Illinois statutory sentencing rules

The Preservation Problem

The single biggest obstacle to a successful appeal is preservation. Illinois law and federal law both require that issues be raised in the trial court, generally through specific objections at the moment the alleged error occurred and in post-trial motions. Issues that were not preserved are reviewed only for "plain error," which is a much harder standard to meet.

This is why the lawyer who handles the trial matters enormously for the appeal. A trial defense attorney who objects to inadmissible evidence, who states the grounds for the objection clearly on the record, who files thorough post-trial motions, and who builds the record with appellate review in mind has preserved the issues that an appellate lawyer can work with. A defense attorney who does not, often through no fault of the client, leaves issues forfeited that could have been winners on appeal.

What the Standard of Review Means

Different issues are reviewed under different standards. The standard often dictates the outcome. The main standards in criminal appeals are:

De Novo Review

Applied to pure questions of law, such as the interpretation of a statute or the application of a constitutional standard to undisputed facts. The appellate court decides the question fresh, without deference to the trial court.

Abuse of Discretion

Applied to evidentiary rulings, decisions about jury instructions, sentencing decisions in many contexts, and other discretionary calls. The appellate court reverses only if the trial court's decision was unreasonable, not just incorrect.

Clearly Erroneous

Applied to factual findings, particularly findings made by the trial court at suppression hearings. The appellate court defers to the trial court's view of the facts unless the record makes the finding plainly wrong.

Sufficiency Review

Used to evaluate challenges to the strength of the evidence. The appellate court asks whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the offense beyond reasonable doubt. This is very deferential. Sufficiency reversals are rare.

Plea Cases and Appeal Waivers

Most criminal cases end in plea agreements rather than trial verdicts. Plea agreements often include appeal waivers, in which the defendant gives up the right to appeal in exchange for some negotiated benefit. In federal court, appeal waivers are usually enforced. They have exceptions for sentences above the agreed range, ineffective assistance of counsel, and certain other limited circumstances, but the general rule is that a waived appeal is gone.

That said, the existence of a plea does not necessarily preclude all post-conviction relief. Even where a direct appeal is waived, post-conviction remedies remain available for some claims, particularly constitutional ones. The firm's appeals practice page discusses the available options in more detail.

Timing Beyond the Notice of Appeal

The notice of appeal is just the start. After the notice is filed, the record on appeal has to be prepared, the appellate brief has to be written, the State has to respond, and there may be a reply brief and oral argument. In Illinois, a typical direct appeal takes 12 to 24 months from notice to decision. Federal appeals usually take 9 to 18 months, depending on the court of appeals and the complexity of the case.

During that time, the defendant may or may not be in custody. Bond pending appeal is discretionary and depends on the offense, the sentence, and the strength of the appellate issues. Most defendants with significant sentences remain in custody during the appeal.

What If the Direct Appeal Fails?

If the direct appeal does not produce relief, post-conviction remedies remain available. In Illinois, the Post-Conviction Hearing Act allows for collateral attacks based on constitutional violations. Federal habeas corpus under 28 U.S.C. § 2254 is available after state remedies are exhausted, subject to strict limitations under AEDPA. Successive petitions, newly discovered evidence claims, and clemency requests are also possible in the right circumstances. For the federal court system's own description of the appellate process, public resources are available through the administrative office of the United States courts.

Frequently Asked Questions

Conclusion

The right time to file an appeal in a criminal case is, for most issues, immediately after sentencing. The 30-day deadline in Illinois and the 14-day deadline in federal court are short. They run regardless of whether the defendant has decided what to do or has hired appellate counsel. The safest practice is to file the notice of appeal protectively and then make decisions about the substance of the appeal in the weeks and months that follow.

Appeals are not magic. Most criminal appeals do not result in reversal. The ones that do almost always involve issues that were preserved at trial, briefed clearly, and supported by the controlling law. If you are considering an appeal, the firm welcomes a conversation about the record and the realistic chances of success.