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Can I overturn a Conviction in New Jersey?

A criminal conviction can affect your life long after the sentence imposed by the court has been served. A record of prior convictions can even affect what happens to you in court if you are arrested in the future.

A prior conviction can increase the severity of the charges and the penalties if you are subsequently arrested and charged with committing another crime. For example, a person convicted of driving under the influence in New Jersey will lose driving privileges for three months for a first offense where the blood alcohol concentration is .08 percent. A prior DUI conviction within 10 years could result in a two-year license suspension for the second conviction.

Because of the potential long-term consequences of a criminal conviction, you should consider challenging a conviction to get it overturned. The three most common methods of overturning a conviction in New Jersey are a making a motion for a new trial, filing an appeal and filing a petition for post-conviction relief.

Motion for a New Trial

New Jersey Court Rule 7:10-1 allows a defendant to ask the court in which a trial was held to grant a new trial in the interest of justice. The judge, in deciding whether or not to grant a new trial, may consider the following grounds:

A motion for a new trial must be filed with the court within two years after the judgment of conviction on the grounds of newly discovered evidence. A motion based upon fraud or lack of jurisdiction can be filed with the court at any time. A motion based upon any other grounds must be filed within 20 days after conviction although the court may extend the time if asked to do so within the 20-day period.

Appealing a Conviction

If you do not have the grounds to make a motion for a new trial, or if the judge who originally presided at the trial denies your request, you can still appeal your conviction. The Appellate Division hears criminal case appeals. If successful, an appeal might result in the dismissal of the case, remand of the case back to the trial court for further proceedings or modification of the sentence.

The appeal process begins with the filing of a notice of appeal with the clerk of the Appellate Division within 45 days from the date of the judgment of conviction. You could lose your right to appeal your conviction if you do not file within the 45-day period.

There are costs and filing fees associated with an appeal, but these might be waived for those appellants who can prove they are indigent. If you are indigent, you might qualify for representation by the Appellate Section of the Public Defender of the State of New Jersey.

An appeal is a complex process. The Appellate Division clerk's office is prohibited from offering legal advice or assistance to pro se appellants other than responding to questions regarding the procedural rules of the court. You should speak to an attorney or call the public defender's officer (973) 877-1200 for advice before handling your own appeal. Keep in mind that an appellate court does not conduct a new trial. An appellate court reviews the record of the case from the trial court to determine if errors were made in the application or interpretation of the laws.

Post-Conviction Relief

Regardless of the outcome of an appeal or a motion for a new trial, New Jersey Court Rule 3:22 provides a procedure for overturning a conviction. A petition for post-conviction relief is not a substitute for the other methods of challenging a conviction, and it cannot be filed while you are awaiting the outcome of the other methods.

A petition for relief must be filed within five years from the date of conviction. There are four grounds upon which a request for post-conviction relief may be filed, but you cannot use them if you raised them as an issue in an appeal to the Appellate Division or in a motion to for a new trial. The four grounds for relief are:

The bar against raising an issue in an application for post-conviction relief that was previously addressed by a court does not apply if the basis for relief was previously unknown to the defendant or if the basis for relief is founded upon a new federal or state constitutional rule of law. Enforcement of the bar against raising an issue a second time will not apply if the court determines that doing so would result in fundamental injustice.

Where to Start

Overturning a conviction through a request for post-conviction relief begins with the filing of a petition in the office of the criminal division manager of the court in the county in which the conviction took place. If you cannot afford an attorney, Rule 3:22-6 requires that you file a sworn statement with the petition for relief. The criminal division manager's office has a statement of indigency form that it will provide to you.

The presiding judge of the criminal part of the court will review the application for assignment of counsel to determine if you are eligible. If you are entitled to representation by the Office of the Public Defender, the judge will assign them to represent you. If you are not eligible, you will have to retain your own attorney.

How Long Will It Take?

The judge to whom the petition is assigned will make a decision on it within 60 days of its filing date or within 60 days of the conclusion of any hearings the judge might order. The judge does not have to order a hearing. Decisions can be made based solely on the petition you submit and the answer submitted by the prosecutor. If the court decides to grant relief, it may order a new trial, release a defendant from custody, modify a sentence or take such other actions as the court deems appropriate.

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