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Date: August 12, 2010

In Arizona, convicted criminals have the right to what is known as “post-conviction relief” or PCR. This means that individual’s right to have his or her conviction or sentence is re-examined by the court to ensure there were no errors or mistakes in the ruling. These proceedings are often referred to as Rule 32 Proceedings, after the rule number 32 in the Arizona Rules of Criminal Procedure, where the process of PCR is detailed.

There are time limits for post-conviction relief rights that must be followed. Failure to do so may result in loss of the right to have the conviction or sentencing reviewed by the court.

Post-Conviction Relief vs. Appeal

Post-conviction review is an alternative right to the right of appeal, which is also available to anyone convicted of a crime through the trial process. An appeal is different than a PCR, in that an appeal proceeds to a higher level court than the original, sentencing court for review of the case. During an appeal, the higher court is performing a check on the case to ensure no errors or mistakes were committed by the lower court. The higher court, called an appellate court, then makes the decision to affirm and uphold, reverse or modify the lower court’s decision. The appellate court can issue orders as it sees fit, in its decision and the lower court must recognize the appellate court’s changes.

A defendant who pleads “no contest” or “guilty” to a case cannot exercise an appeal. This right to appeal is given up at the time of the plea. Anyone without the right to appeal can still use a limited right to a PCR Petition, however, as specified by Arizona Rule of Criminal Procedure Rule 32. Instead of the guilty or no contest defendant’s case being reviewed at a higher court as during an appeal, the PCR will send the case back to the sentencing court for review through a process known as “of right” proceeding.

How soon must a post-conviction relief be filed?

The defendant filing a post-conviction relief has 90 days after the date of sentencing or 30 days following the date of final appeal to file a petition for PCR. This petition is usually conducted for felony cases that result in sentencing for lengthy prison terms. But some PCRs are filed for defendants who are not required to serve prison time, with the overall purpose of the filing being to gain expungement of the conviction from their criminal records.

Despite the 90 day limitation for filing of a PCR, most courts still allow filings after the 90 days have expired. This is because the courts recognize that most people are unaware of their right to file a PCR.

Why is a Post-Conviction Relief Petition Typically Filed?

In most cases of a post-conviction relief petition filing, the filing is for ineffective assistance of counsel by the defense attorney. A defendant may believe that he or she was convicted because the defense attorney failed to provide the assistance they should in their capacity. Public defenders are frequently the subject of post-conviction relief filings, as part of which the court reviews the attorney’s work in the case to see if the defendant was not well represented.

Conviction can be overturned if a defense attorney performed poorly and neglected the adversarial testing that could have prevented conviction. Such an attorney may have failed to interview witnesses as they should have, also potentially leading to overturning the conviction.

Another reason for filing of a post-conviction relief petition is that of new evidence in a case being discovered. If the defendant’s innocence can be proven through new evidence, or drastic changes of laws used in the conviction have been made, defendants can gain relief through a PCR.

What happens if a conviction is overturned through use of a PCR?

If a PCR-related conviction is overturned, the original charges are reinstated by the prosecution. The case is then either sent back to court for a new trial under original charges or a new, lesser plea agreement may be arranged between prosecution and the defense attorney. In some cases, a post-conviction relief has resulted in dismissal of all charges.

A good example of a dismissal would be when a PCR is filed because previously unexamined evidence or new methods of scientific testing prove a convicted party’s innocence. This type of dismissal has resulted for people convicted of crimes prior to the availability of DNA testing. When DNA testing can be used to prove their DNA does not match that of evidence, such cases can be dismissed and the defendant freed.

Through the expert skill of a criminal defense attorney, a post-conviction relief petition can result in freeing of a convicted criminal. David Michael Cantor of the Law Offices of David Michael Cantor has succeeded in multiple PCR cases in the past. One example would be having a defendant convicted to a term of 17 years set free through post-conviction relief.

The Risk Factor of Post-Conviction Relief

Despite post-conviction relief sounding like a “no-brainer” option to reduce sentencing or possibly even gain freedom, defendants must be aware that there is some risk inherent in using a petition for post-conviction relief. Some convictions may be initially reversed for retrial. Then, when the second trial is conducted, the defendant can be re-convicted. This can result in an even harsher sentence than the first trial, or new evidence being used against the person for an even stronger case by the prosecution. Although this is rare, it can happen.

Because of the nature, delicacy and risks of post-conviction relief petitions, it is important that you have a skilled Arizona appeals lawyer on your side. David Michael Cantor is a certified criminal law specialist according to the Arizona Board of Legal Specialization, also listed in the listed in the Bar Register of Preeminent Lawyers®. Call the Law Offices of David Michael Cantor now at (602) 307-0808 for a free initial consultation regarding the possibility of your post-conviction relief petition filing.

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About the Author

Attorney James A. Abate practices Criminal Defense, DWI Defense, Business Litigation, Real Estate & Personal injury cases in Union County, New Jersey.