Post conviction criminal proceedings allow a criminal defendant to challenge the outcome of a conviction or judgment that has otherwise become final. There are many different types of post conviction proceedings. Most of these require the defendant to prove that some sort of error was committed in the lower courts which affected the outcome of the ruling.

Many states have statutes governing post-convictions proceedings, or post conviction relief (PCR). However, some state statutes may limit the scope of the post conviction relief, as well as the timeliness for filing the claim. For example, many states do not allow post-conviction proceedings once five years have passed after the conviction.

What Are the Different types of Post Conviction Criminal Proceedings?

Post conviction proceedings come in many different forms.  Depending on the nature of the criminal charges, these may or may not be available to the defendant after a judgment has been reached.

Some of the more common forms of post-conviction relief include:

  • Appeal: The right to an appeal exists only where the court’s decision was based on some sort of legal or procedural error, such as an improper jury instruction. In an appeal, no new evidence will be considered- the appellate court will only review the records and evidence from the trial court.
  • Retrial: A criminal retrial is only available where a very serious error occurred in the trial court. For example, if a juror had tampered with evidence or if an attorney committed misconduct, a retrial may be needed. A retrial is different from an appeal in that new evidence and a new jury may be used in the retrial.
  • Writ of Habeas CorpusHabeas corpus permits any person who is detained to be released after challenge the constitutional basis of their incarceration. In a habeas corpus proceeding, it must be proven that the defendant should be incarcerated according to federal or state laws.
  • Clemency: If granted, clemency allows the offender to be forgiven of their charges after conviction. Clemency typically includes the restoration of the inmate’s civil rights upon release, such as their right to vote or own a gun. It is typically filed with the state’s Governor.
  • Commutation: Commutation is similar to clemency with the exception that the person’s civil rights may not be restored even if they are released from prison.
  • Pardon: Persons incarcerated in a federal prison facility may petition for a pardon, which would absolve them from their legal charges. Pardons are fairly rare and difficult to obtain, as they require approval from the President of the United States.
  • Expungement: A person who has fully served out their sentence may be able to apply for expungement or record sealing in the future. Expungement prevents persons from accessing the defendant’s criminal record and in some cases it is as if the crime never occurred. Some crimes such as felonies may not be expunged.

Also, a person who has been convicted of a crime may also have several options if they have been granted parole or probation. Inmates can often be released from incarceration early, depending on the person’s compliance with probation requirements.

Do I need an Attorney for Post Conviction Criminal Proceedings?

Post conviction proceedings depend on a variety of factors that must be carefully weighed and analyzed. If you suspect that there are ongoing considerations that must be addressed in your criminal case, you may wish to speak with an experienced criminal lawyer. Your attorney will be able to assess the facts involved in your case to determine whether you are entitled to post conviction relief.