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What Are Your Options if It’s Too Late to File a Criminal Appeal in New Jersey?

September 27, 2023 | Posted In Criminal Law

When you get convicted of a crime in New Jersey, you have the right to file an appeal. However, the time window for filing an appeal is extremely small. While your criminal case might go on for months—if not a year or longer—you only have a matter of weeks to file for appellate review once your trial ends. As a result, it is important to discuss your appellate rights with a New Jersey criminal lawyer as soon after your conviction as possible.

But what if it’s already too late?

In New Jersey, the deadline to appeal a conviction for an indictable crime is 45 days. The deadline to appeal a conviction for a disorderly persons offense is just 20 days. Once this deadline expires, you will lose your right to appeal. In some circumstances, you can seek to file an appeal out of time. You have four primary options: (i) file a petition for post-conviction relief; (ii) file a petition for executive clemency; (iii) file for expungement of your criminal record; and/or (iv) seek another form of relief authorized under the law or the New Jersey Court Rules.

Four Potential Options Once Your Right to File a Criminal Appeal Has Expired

To be clear, these options won’t be available in all circumstances. Once your right to file an appeal has expired, the options you have available will depend on the specific circumstances of your case. When you sit down with an experienced New Jersey criminal lawyer, your lawyer will review the circumstances of your case to determine which of the following options (if any) you may be able to pursue:

1. Filing a Petition for Post-Conviction Relief

Filing a petition for post-conviction relief (PCR) is similar to filing an appeal in that it provides an opportunity to have your conviction overturned. However, that’s pretty much where the similarities end. Petitions for post-conviction relief are subject to different rules and procedures, and the grounds for filing a petition are different from those for filing an appeal.

The grounds for filing a petition for post-conviction relief are listed in New Jersey Court Rule 3:22. They include:

  • Substantial denial of your rights under the U.S. Constitution, New Jersey Constitution or New Jersey law.
  • Lack of jurisdiction of the court to impose your conviction.
  • Your sentence is excessive or “otherwise not in accordance with the sentence authorized by law.”
  • You received ineffective assistance of counsel.
  • Any other ground “heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.”

Rule 3:22 also establishes the procedures for filing a petition for post-conviction relief as well as limitations on when a petition may be filed. The deadline for filing a first petition for post-conviction relief is five years from the date of conviction in most cases; however, there are exceptions that allow for later filings in certain circumstances.

2. Filing a Petition for Executive Clemency

Another option that is available in limited circumstances is to file a petition for executive clemency. Also commonly referred to as a request for a pardon, this is a formal filing seeking relief from your conviction, not in the courts, but instead from the state’s governor. While successful requests for clemency are rare, if you are facing years or decades of imprisonment, it is worth discussing all of your options with an experienced New Jersey criminal lawyer.

Seeking clemency starts with filing your petition with the New Jersey State Parole Board. The petition is 12 pages long, and it requires you to provide extensive information—including an in-depth explanation of why you believe clemency (or a pardon) is warranted. Once you file, the New Jersey State Parole Board will conduct an investigation and then make a recommendation to the governor. Unlike appeals and petitions for post-conviction relief, there is no deadline for filing a petition for executive clemency.

3. Filing for Expungement of Your Criminal Record

If you are not able to have your conviction overturned, then your best option may be to file for expungement. New Jersey’s expungement laws are complicated, and they impose different waiting periods for different crimes. Additionally, many serious crimes are not eligible for expungement, and non-criminal offenses (including driving under the influence (DUI)) are not eligible for expungement, either.

But, if your conviction is eligible—or if your conviction will become eligible in the future—then filing for expungement will provide the opportunity to have your record cleared. When conducting background checks, employers, banks, credit bureaus, colleges and universities, and other entities will not see a record of your conviction. Information about your conviction will still be available to law enforcement agencies and certain other governmental entities, but they will only be able to use this information for limited purposes. Filing for expungement can truly provide a new lease on life, and it is an option that you will want to pursue if it is available to you.  

4. Seeking an Alternative Form of Relief

The New Jersey Statutes and New Jersey Court Rules provide opportunities to seek various other forms of relief as well. Similar to the types of relief discussed above, these are also only available in limited circumstances. Some examples include:

  • Motion for Reduction or Reconsideration of Sentence
  • Motion for Change of Sentence
  • Motion to Vacate Certain Convictions

When you are facing the life-altering consequences of a criminal conviction, it is important to protect yourself by all means available. Unfortunately, understanding the options that you have available is not easy. An experienced New Jersey criminal lawyer can help, and to give yourself the best chance of avoiding unnecessary consequences, you should speak with a lawyer as soon as possible.

Discuss Your Options with a New Jersey Criminal Lawyer

Do you have questions about challenging a criminal conviction or sentence in New Jersey? If so, we invite you to get in touch. To request a confidential consultation with a New Jersey criminal lawyer at Helmer, Conley & Kasselman, P.A., please call 877-435-6371 or tell us how we can reach you online today.

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