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What is the Difference Between an Appeal and Post-Conviction Relief?

On behalf of Dolan + Zimmerman LLP August 20, 2021

If you were convicted of a crime, you have options to challenge this conviction. Your primary options are an appeal and post-conviction relief. 


What is an Appeal?

An appeal is a written motion that your attorney can file requesting a higher court to review your case and determine if they believe the conviction was the correct ruling. In addition to the motion your lawyer files, the court will also consider any responses filed by the prosecution. In certain circumstances, the attorneys will be requested to make oral arguments, where they argue in front of the judge based on the motion they submitted. You and your attorney are not permitted to provide additional evidence; the judge will only look at the evidence presented during the trial. This includes any evidence presented, the trial transcript, the decision that the trial judge made, and anything else relevant from the trial.


Possible Outcomes of an Appeal

When you appeal a conviction, there are several different possible outcomes. If the judge determines that the trial judge made a serious mistake, they can order a new trial, send your case back for resentencing, or even order that you be released and the conviction vacated. How serious the error was will determine what the judge decides to do if they believe a mistake was made. Alternatively, the judge can determine that no error (or no error serious enough) was made and uphold the conviction that the lower court entered. 


What is Post-Conviction Relief?

A motion for post-conviction relief (also known as a Rule 35(c) motion in Colorado) is different from an appeal. One of the primary differences is that when filing a post-conviction relief motion, you’re asking the same court to review certain aspects of your case, whereas, with an appeal, you’re asking a higher court to review the entire case. There are several reasons that you or your lawyer might file a motion for post-conviction relief; the most common reasons include the following:


  • You were convicted illegally
  • Your sentence was illegal
  • The court that convicted you did not have jurisdiction
  • There is new evidence in the case that could not have reasonably been discovered prior to the conviction
  • Ineffective assistance of counsel
  • Prosecutorial misconduct 
  • You’ve served your sentence but haven’t been released 


In Colorado, the timeline for a post-conviction relief motion depends on the crime you were convicted of. For class 1 felonies, there is no time limit – you can file this type of motion at any time. For all other felonies except class one, you must file a motion for post-conviction relief within three years, for misdemeanors, you must file within 18 months, and for petty offenses, you must file within six months. 


Possible Outcomes

If your motion is granted, the judge can do a number of things, depending on what your motion was requesting. Some options that can be taken are to reduce or correct your sentence if the one you were given was illegal, or the judge can set aside the conviction, which could reduce or vacate your sentence.


Contact a Lawyer

If you believe that you have the grounds for an appeal or you want to file a motion for post-conviction relief, you should contact a criminal defense attorney in Boulder right away so they can assist you.