Appeals vs. Post-Conviction Relief: What’s The Difference?

If you are convicted of a crime, it can feel like your life is over. However, you do have options to get that conviction reversed. You can do this with either a direct appeal or a petition for post-conviction relief. While the outcome may seem similar, these are two different legal processes. Understanding both will help you decide with your attorney which route would be more appropriate for your case.


In Oregon, by law you are able to take an appeal of your case from the circuit court to the Oregon Court of Appeals.

It’s important to remember that an appeal is not a re-trial. You can present no further evidence or facts, and witnesses are not interviewed. Instead, it is a legal review of what happened during your trial to see if any legal mistakes were made by the original trial judge, constitutional violations or procedural mishaps. Everything is based on the written documentation of the case, and the appellate court will base their decisions solely on that record.

There are several things that the appellate court will examine, but they are all based on legal standards. For example, the court of appeals will look at all of the objections to see how the judge ruled on them. They will also look at what evidence was allowed or disallowed to be shown to the jury. While they may find errors, that does not mean that your appeal will be successful. They may decide that the errors were minor, or that they would not have affected the outcome of the trial.

It’s important to remember that the court of appeals can only look at what happened during trial. If the defense did not raise an issue in trial court, then it cannot be included as part of an appeal. For example, if they did not object to something at the time, then the appellate court will not consider it an error by the judge for not considering it. A trial judge can only rule on what they are asked to rule on. They cannot suggest to an attorney that they object, or raise an objection for them.

Appeal Timeframes for a Defendant

The defense must file an appeal promptly after a conviction. By law, in Oregon you have 30 days to file the notice of appeal, otherwise your appeal will not be heard. There are some exceptions to these timelines, but you do not want to rely on them unless you have to.

Possible Outcomes For An Appeal

If the appellate court finds that the trial judge has made a big enough error to affect the trial, then that court can reverse the conviction and remand the case back to the trial court for further proceedings.

Petition for Post-Conviction Relief

A petition for post-conviction relief is a different legal proceeding than an appeal. Most commonly a petition for post-conviction relief is made when the defendant claims that they pled guilty involuntarily, or that the judgment resulted from constitutionally defective representation.

Most often, a petition for post-conviction relief is made because the defendant feels that their counsel was ineffective. As opposed to the judge making errors, defense counsel may have made errors that were bad enough to have affected the outcome of the trial. For example, if your lawyer didn’t bring up an obvious objection that ended up harming your case, you may be able to make this claim.

A petition for post-conviction relief is handled by the trial court as opposed to the appellate court. You can even present new evidence to show how what happened during the trial harmed your case. For instance, unlike with an appeal, you can show that your lawyer didn’t bring up that objection, or that there was a witness that should have been interviewed or put on the stand. If after a written submission the trial court finds your case for relief persuasive, then that trial court can grant a new trial.

Petition for Post-Conviction Relief Timeframes

To file a petition for post-conviction relief, you would most likely require new representation. You typically would not have a lawyer claim that they themselves were ineffective. Your new counsel will have to go over all of the facts of the case and the trial records before deciding whether to file the motion. Since this can take a significant amount of time, you have two years from your conviction to file in Oregon courts. For federal courts, you have one year.

However, this can get tricky. Sometimes there are questions of federal law that affect cases being tried at a state level. If this is the case, then you must first file the motion in state court. If it is again denied, then you can go ahead and file in federal court. If you file in state court first, then your one-year limit for federal motions will restart when you are unsuccessful at the state level.

That said, that delay is only during the time that you are making the case in state court. For example, if you file 1 month after your original conviction, and are unsuccessful at the state level, you will have 11 months to refile in federal court. If you file after 12 months at the state level, then you will lose your right to file in federal court. And when your case is pending on appeal, the clock is not running on either the state or federal clock. This is why it is always advisable to first pursue a direct appellate challenge to your conviction.

After a Petition for Post-Conviction Relief is Granted

If your motion is granted, then your case will be sent back to trial. At this point, the prosecution can decide whether to retry you or to dismiss the case altogether.

It is important to remember that while it may seem simple on the surface, criminal law is complex and dense, and you should have an expert on your side at all times. An experienced and skilled criminal attorney can help you navigate both the appeals process and the process for a petition for post-conviction relief so that you can get the best outcome possible.

The bottom line is this: just because you have been convicted does not mean there is no hope for a reversal.

Call 503.763.3537 or send an email to get started with an intial consultation.