What is a Collateral Appeal

Once you are convicted of a crime, a collateral appeal is one of several post-trial motions your attorney may file in attempt to procure post-conviction relief for you. Collateral appeals are generally relied on as a “next step” after direct appeals have run their course.

Difference Between Direct and Collateral Appeals

AppealsWhile the overarching goal of a collateral appeal is the same as a direct appeal (i.e., to modify or overturn a conviction or sentence), the approaches of the two are quite different. A direct appeal is considered to be “as of right,” meaning you automatically have the right to appeal your conviction to the higher courts. However, collateral appeals are more at the discretion of the courts as to whether to entertain or approve them. While direct appeals are formal appeals made to the higher courts within a jurisdiction, most collateral appeals are post-trial motions made in the court that tried your case. Finally, while the strategy of direct appeals is generally to point out errors or negligence that directly affected your conviction, the approach of a collateral appeal is to challenge the legality of the conviction or sentence itself. While it is possible for both forms of appeal to be in process at the same time, collateral appeals are generally considered a “last resort” after direct appeals have failed to produce results.

Types of Collateral Appeals

Perhaps the most widely known collateral appeal is the Petition for Habeas Corpus, which makes the claim that you are being incarcerated illegally. This motion can’t be made unless you are actually in jail and other appeals have run their course. Your attorney may employ other post-trial motions (such as a Motion for a New Trial or Motion to Void Correct Sentence), citing possible claims such as ineffective assistance of counsel during your trial, newly discovered evidence that could exonerate you, incorrect sentence or conviction out of jurisdiction, or other errors that might make your conviction illegitimate.

Because collateral appeals are discretionary and often denied, it’s important that they be handled by an experienced defense attorney who can help determine which post-conviction remedies are most likely to be effective in your case.