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The Difference between an Appeal and a Post-Conviction Motion


Judge with a gavel in a courtFew areas of criminal law are as complex as the appellate and post-conviction process. While an appeal and a post-conviction petition are both ways in which a defendant can obtain relief after a conviction, the two processes are very different. Thus, those who are hoping to overturn a conviction or challenge their sentence should be aware of the differences between an appeal and a post-conviction proceeding.

What Is an Appeal?

Most New Mexico criminal cases take the same path through the justice system. While the path varies depending on whether the case involves a misdemeanor or felony charge, a case is tried initially in front of a trial judge. In New Mexico, the trial courts are the Municipal Court (petty misdemeanors), Magistrate Court (misdemeanor jury trials and felony preliminary hearings), and the District Court (felony jury trials).

If a case ends in a conviction, the defendant can appeal the case to a higher court. Most appeals challenge a legal decision made by the trial judge. Examples of this are such actions as admitting or excluding certain evidence, and the granting or denial of a motion. Generally, factual determinations are left to the discretion of the trial judge and are rarely disturbed on appeal. Thus, most successful appeals are based on some legal error made at trial, rather than on the judge or jury’s decision after weighing the evidence. To raise an issue on appeal, the defendant must preserve the issue at trial. New Mexico appellate courts require a defendant to preserve all appellate issues by bringing the issue to the trial judge’s attention as soon as it arises. This is most often done through a contemporaneous objection.

Generally, a defendant will file an initial appeal with the intermediate appellate court, the New Mexico Court of Appeals, and all defendants have an automatic right to file. If that court denies an appeal, a defendant can then file an appeal to the New Mexico Supreme Court. However, the New Mexico Supreme Court selects only a certain number of cases to hear each year. Finally, if a defendant is unsuccessful in filing an appeal with the New Mexico Supreme Court, they can pursue an appeal with the United States Supreme Court. Again, however, the U.S. Supreme Court only takes a very limited number of cases per year.

When an appellate court considers a defendant’s appeal, it only considers the record below, meaning no new or additional evidence is presented. The defendant presents a brief in support of their appeal, which outlines the legal argument in favor of their requested relief. Thus, challenges to a trial attorney’s decision-making process are not typically heard on direct appeal. For example, an appeal could not be based on a defendant’s claim that their attorney was ineffective for failing to speak with a known witness, because this would require the court to consider additional evidence not present at trial. These appeals are largely unsuccessful as appellate courts deny about 90 percent of those filings.

What Is a Post-Conviction Petition?

Meaning of conviction.Like an appeal, a post-conviction petition is a way for a defendant to have the court review their conviction or sentence. However, in a post-conviction matter, the court will consider additional evidence. Post-conviction motions are also referred to as habeas corpus petitions. Essentially, a habeas corpus petition alleges that the continued imprisonment of a defendant is unconstitutional based on a violation of their state or federal constitutional rights. In this way, a post-conviction petition prevents wrongful convictions, illegal sentences, and other systematic errors in the criminal justice system.

Defendants can raise a variety of issues in a post-conviction proceeding. However, a few of the most common claims involve:

  • The ineffective assistance of trial counsel: Examples include a lawyer’s failure to investigate a claim of innocence, failure to challenge the admission of certain evidence, conflicts of interest, and more.
  • Prosecutorial misconduct: Examples include discovery violations and inflammatory comments made in front of the jury.
  • Judicial misconduct: Examples include undisclosed conflicts of interest or improper comments made to the jury.
  • Improper or erroneous physical evidence: Examples include DNA evidence presented through outdated or unproven scientific means and the admission of discredited evidence, such as bite-mark or ballistics evidence.
  • Newly available evidence: Examples include previously unknown evidence suggesting someone else was responsible for the crime, or undisclosed evidence of a defendant’s past experiences and mental health issues as they pertain to a sentencing hearing.

Like a direct appeal, there is an automatic right to have a court hear a state or federal habeas corpus petition. Unlike an appeal, there is no time frame in which a defendant must file a post-conviction claim. However, courts do not need to consider the merits of a second or successive post-conviction petition. Thus, it is crucial for defendants to discuss a post-conviction claim with an attorney, so that they can bring all potentially viable claims in their first petition.

Defendants can file state and federal writs of habeas corpus. However, a defendant must first exhaust all available remedies through state post-conviction relief before pursuing a federal habeas corpus petition.

While the appellate process can be complicated, the post-conviction process is a labyrinth of procedural rules, making these claims exceptionally challenging for defendants to bring on their own.  Those who believe they did not receive a fair trial or sentence should reach out to a dedicated New Mexico post-conviction legal team for immediate assistance.

Contact the New Mexico Criminal Law Offices Today

If you were convicted of a crime in New Mexico, do not give up hope. The dedicated team of attorneys at the New Mexico Criminal Law Offices is here to help. We have extensive experience handling both appellate and post-conviction cases and can help you understand your rights and pursue the relief you seek. To learn more about how we can help you with your case, and to schedule a free consultation with one of our Albuquerque criminal appeals legal team, give us a call or contact us through our online form.