How to Overturn or Appeal a Record in Illinois

Overturn or appeal a conviction in Illinois

Any person who has been convicted of a crime in an Illinois court has three options to attempt to overturn the conviction.

Post-Trial Motions

First, the convicted individual has 30 days to file motions for relief from the verdict or judgment. These motions are filed in the trial court and are usually heard by the same judge that presided over the trial. The other party must be served with notice of the pending motion. There are two types of motion that can be filed, depending on the reason relief is requested.

Motion For New Trial

One option is a Motion for New Trial, which sets out reasons the defendant did not receive a fair trial or explains newly discovered evidence[1]. The other option is a Motion in Arrest of Judgment, which argues that the court did not have jurisdiction to enter a judgment, or that the facts alleged in the charging document do not constitute a crime. In that latter case, the defendant must show that the charging documents lacked sufficient specificity to allow him to prepare a defense[2].

When a motion for a new trial is granted, the conviction is vacated as if it did not happen, and a new trial date is set. The case is heard before a new jury, but the same judge may preside. If the post-trial motion is denied, the convicted individual may file a Notice of Appeal.

Notice of Appeal

If a post-trial motion is denied, or if the defendant does not wish to file a motion with the trial court judge, he may file a Notice of Appeal. The Notice is filed with the clerk of the court that heard the original case, but the appeal is decided by the Appellate Court[3]. This notice must be filed within 30 days after the date sentence is imposed. When the defendant first files post-trial motions, then the Notice of Appeal must be filed within 30 days after those motions are denied. Rule 606 contains a sample of the Notice of Appeal. The clerk of the circuit court has five days to file a copy of the Notice of Appeal with the Appellate Court.

The clerk of the court also begins to assemble the record to be transferred to the Appellate Court. The record includes:

  1. A cover sheet;
  2. If there was an indictment, a certificate showing the grand jury impanelment;
  3. The charging document;
  4. A transcript of the arraignment and plea entry;
  5. All motions, transcripts of motion proceedings, and orders;
  6. All warrants, consent to search forms, eavesdropping orders, and similar documents;
  7. A transcript of any proceedings related to waiver of a jury trial or waiver of the right to counsel;
  8. A full report of the trial;
  9. a report of exhibits offered at trial or sentencing, with some exceptions;
  10. A report of exhibits offered at trial or sentencing, with some exceptions;
  11. The court's finding or the jury's verdict;
  12. Any post-trial motions;
  13. A full report of the sentencing, including transcripts;
  14. The judgment and sentence;
  15. The Notice of Appeal
    1. If the appellant would like to designate additional items to appear in the record, he has 14 days after the Notice of Appeal is filed[4]. The appellant may also move to create a supplemental record with exhibits that would not otherwise be part of the record.

      Within 14 days after the Notice of Appeal is filed, the appellant must file a docketing statement and pay a $25 fee. The docketing statement format is provided in Rule 606. The filing fee is waived if the appellant is represented by a court-appointed lawyer on appeal.

      The Appellate Court does not hold a new trial. It does not accept evidence or consider arguments not raised in the trial court. The Court reviews the record to determine whether the trial court judge made mistakes that unfairly prejudiced the outcome.

      Filing an Appeal

      The law also allows an appeal to be filed to challenge the conditions of a person's sentence or probation. If the conditions of a person's sentence are modified or revoked, it may also be possible to request a review of that decision. Further, a defendant may appeal an order finding him fit to stand trial if he is later convicted. In a situation where a defendant filed a motion to withdraw a guilty plea that was denied, the denial of the motion may be appealed. To appeal a sentence entered following a guilty plea, a post-trial motion must be filed first[5].

      Whatever the basis for the appeal, the appellant's arguments are presented in the Appellant's Brief, filed after the case is docketed in the Appellate Court. The state then has an opportunity to refute these arguments by filing an Appellee's Brief. In some cases, the Appellee's Brief raises new arguments that permit the appellant to file a Reply Brief. The justices of the Appellate Court review all the briefs, then decide whether to allow oral argument.

      While the appeal is pending, the appellant may be released on bail unless the state is able to show compelling reasons that he should remain in jail[6]. If the conviction is vacated, the case is returned to the trial court for a new trial. If the conviction is upheld, the appellant will be returned to the state's custody to serve the original sentence. However, the appellant has the ability to seek further review from the Supreme Court of Illinois.

      Illinois has an Appellate Defender that may be able to provide no-cost assistance to those who cannot afford an attorney on their own.

      Write of Habeas Corpus

      A Petition for Writ of Habeas Corpus is a request that a judge order the institution holding a prison in custody release him based on a violation of the prisoner's rights that makes the detention unlawful. The Petition informs the institution of the allegations and calls upon the state to prove that the continued detention of the prisoner is legal. A Petition for Writ of Habeas Corpus may be brought at any time while a person is in custody. A prisoner may be able to request a waiver of filing fees if he cannot afford them.

      A person who alleges a violation of the rights guaranteed by the U.S. Constitution has the ability to file in the federal district court where the person is being held. If the request is denied, it may be possible to appeal to the U.S. Court of Appeals.

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      [1] 725 Illinois Compiled Statutes 5/116-1.
      [2] 725 Illinois Compiled Statutes 5/116-2.
      [3] Illinois Supreme Court Rules, Rule 601.
      [4] Illinois Supreme Court Rules, Rule 608.
      [5] Illinois Supreme Court Rules, Rule 608.
      [6] Illinois Supreme Court Rules, Rule 604.