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Obtaining a Belated Appeal

What do you do if you are trying to get a belated appeal for your case?

All criminal defendants have a right to appeal their conviction, but that right is lost if the appeal is not timely filed. A belated appeal is a legal term referring to an appeal being allowed after the normal time-limit has expired. For example, a defendant has ten days to initial an appeal of a General Sessions level conviction to the South Carolina Court of Appeals. The appeal is initiated by the filing of a Notice of Appeal with the Court and providing a copy to the prosecutor. If the appeal is not filed within this time, for any reason, it will be rejected by the Court of Appeals. This means that the appeal will be denied, even if there were serious or substantial errors present.

To qualify for a belated appeal a defendant must establish that they didn't knowingly and intelligently waive their right to an appeal. The request for a belated appeal is normally included as part of a petition for post-conviction relief (PCR). If the PCR court finds that the defendant didn't properly waive their right to an appeal then it can issue an order allowing the appeal to be taken. If the PCR court denies the belated appeal then the defendant has a right to petition the South Carolina Supreme Court directly for permission for the belated appeal.

There are many reasons why an appeal may not be timely filed. One situation which can arise is when the defendant instructs their attorney to file an appeal, but the attorney fails to do so. Other times the lawyer may mean to file the appeal, but may inadvertently file it outside of the time period. There are also times when the original defense attorney may have never reviewed with the defendant the right to an appeal. Any of these situations can serve as a basis for the court to grant the right a belated appeal.

Because a belated appeal is usually requested in the context of a post-conviction relief (PCR) filing, you'll need to make sure that this request is included in requested relief. At the Law Office of James R. Snell, Jr., LLC, our PCR attorneys will automatically include the request for a belated appeal whenever the appeal was not properly filed by the original attorney. We'll investigate the circumstances of the case to look for the type of failures in the process that can result in a belated appeal being granted. Then these issues can be presented to the PCR court in an effort to have the appeal granted.

Having a belated appeal granted can make all the difference in the circumstances that there were legal errors or mistakes made by the judge. Mistakes made by the judge cannot always be directly addressed in a PCR context, that is why it is so important to be on the lookout for the possibility a belated appeal.

Your first step in trying to obtain a belated appeal, or any other post-conviction relief, should be to contact the lawyers at the Law Office of James R. Snell, Jr., LLC.

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