Appeals and Post-Conviction Relief

Once the Arizona Superior Court has criminally sentenced you, you may seek relief either through filing an appeal or filing for post-conviction relief.

In general, if you were sentenced through a trial, you have a right to an appeal but must file within 20 days of sentencing. If you were sentenced through a plea agreement, you have a right to post-conviction relief within 90 days of sentencing.

Contact an experienced attorney right away to assist you through the appeals process to ensure that your rights to relief are preserved before the statutory period expires.

Unfortunately, mental illness and its role in the charged crime are not adequately addressed and may be grounds for relief. Bernardo Garcia has the experience and knowledge of advocating for those with mental illness and explaining the mental illness’s role in the offense to advocate for a just punishment. Mr. Garcia believes that all circumstances surrounding a defendant’s behavior, including the inability to have full control over their mental facilities, should be considered in resolving a case.

Bernardo Garcia is a seasoned attorney with the experience and understanding necessary to discover and present all possible arguments for post-conviction relief and provide you with the best chance of obtaining the just outcome.

If you or a loved one wants to seek an appeal or post-conviction relief, contact Bernardo Garcia to determine if you are eligible for relief and how he can assist you in proceeding quickly to reserve the right to review.

Which Post-Conviction Right to Relief am I Eligible for?

You have the right to an appeal from:

• A final judgment of conviction (found guilty in a trial and subsequently sentenced)
• An order denying a motion for a new trial
• A sentence that is illegal or excessive

You have the right to post-conviction relief if:

• You entered a plea of guilty or no contest
• Admitted a violation of conditions of probation or had an automatic probation violation based on a plea of guilty or no contest
• You failed to appear at sentencing, resulting in sentencing occurring over 90 days after the verdict of guilt.

Right to Appeal

An appeal from the Arizona Superior Court is asking a higher court – the Arizona Court of Appeals – to review the decision of the Superior Court and reverse the conviction or modify the judgment. The right to an appeal is not absolute upon a finding of guilt, an error that violated your right to a fair trial, or unfairly prejudiced the case against you.

You must file a Notice of Appeal within 20 days after your Arizona Superior Court sentence or lose your right to appeal.

Bernardo Garcia will dedicate the time and attention to reviewing the record of your trial to determine if one or more legal errors occurred. If a legal error has occurred, Bernardo Garcia will attack your conviction through an appeal. Bernardo Garcia will identify and highlight critical issues that prejudiced the convicted individual. A successful appeal can result in the reversal of conviction, suppression of evidence, a reduction in punishment, or the granting of a new trial.

Right to Post-Conviction Relief

If you did not file, or if you did not have the right to file, a Notice of Appeal, you must file a Notice of Post-Conviction Relief within 90 days of sentencing, or you may lose your right to post-conviction relief.

Post-conviction relief is a complex process and not liberally granted. Certain claims to relief are barred from being brought once you have filed your first petition for post-conviction relief or appeal. It is pertinent to hire an experienced attorney to assist you in the process and evaluate your claim. Contact Bernardo Garcia for a free 30-minute consultation.

In Arizona, post-conviction relief is divided into two categories: (1) post-conviction relief for defendants sentenced following a trial or a contested probation violation hearing; and (2) post-conviction relief for defendants who pled guilty or no contest, who admitted a probation violation, or who had an automatic probation violation. Each category has its own set of procedures and rules. A Petition for Post-Conviction may result in overturning a conviction resulting in early release or dismissal of the case.

An experienced attorney can help guide you through this process to ensure your claims are preserved, and your rights are protected. Bernardo Garcia understands the grounds for relief and has the seasoned skill set to identify the grounds and effectively present them in an effective argument to the Court.

Probation Violation

The Court may sentence a person to serve probation in lieu of jail or prison time for certain offenses. When a person is on probation, they are expected to comply with all the guidelines and restrictions of their probation, such as:

• Remaining Law Abiding
• Reporting to a probation officer
• Requesting and obtaining permission from Adult Probation before leaving the state
• Not to possess, use, or control any firearms.

If a person on probation fails to comply with any condition of their probation, they could be charged with violating probation and risk having to serve the remainder of their term in jail or prison without early release.

Bernardo Garcia is a seasoned attorney who has successfully gotten his clients reinstated on probation, avoiding a jail or prison term, by investigating and presenting the role of mental illness. Even if your mental illness was not presented in your initial matter for which you were placed on probation, Bernardo Garcia has the skills and knowledge to appropriately present your mental illness in advocating for your reinstatement on probation.

Rearrest While on Probation

The court and probation officers can issue an immediate warrant for a defendant’s arrest. If a defendant is rearrested during probation, either for a new crime or a separate probation violation, they will be held “Non-Bondable” until the probation violation process is finalized.

“Non-Bondable” means no amount of money will get a defendant released. Although it is rare, a judge can release the defendant on their “own recognizance” during the pendency of the proceedings. A skilled attorney is imperative in trying to obtain such release.

If you violate your probation, are accused of violating your probation, or if you are concerned that you may not be able to fulfill the conditions of your probation, contact Bernardo Garcia for a free 30-minute consultation to determine how he can assist you in mitigating the consequences of a violation or to advocate for modification of your conditions of probation to ensure you remain complaint and avoid any harsh consequences including imprisonment.

If you are arrested for a new crime while on probation, it is essential to aggressively defend your case as not only can you receive punishment for the violation, you can also be convicted of the alleged new crime with harsher consequences due to being on probation at the time of the new alleged crime.
Bernardo Garcia understands just because you or a loved one has been arrested or accused of a crime or violation does not mean that the accused individual is guilty. Mr. Garcia also advocates for his clients who have violated their probation to ensure their rights are protected, and they receive a just outcome.

If you or your loved one’s alleged violation is a result of mental illness, Mr. Garcia’s skills and experience in presenting this mitigating information to negotiate a fair outcome on your or your loved one’s behalf.

Steps in Probation Violation Process

• Petition to Revoke Probation
• Probation Violation Hearing
• Probation Violation Disposition

Post Guilty Except Insane Verdict Representation

If a finder of fact (either the judge in a bench trial or the jury in a jury trial) finds a defendant guilty except insane, the Court must sentence the defendant to a term of confinement in a mental health facility and to be placed and remain under the jurisdiction of the superior court. The superior court holds hearings to determine eligibility for conditional release; and whether any conditions of a person’s release should be continued, modified, or terminated.

Bernardo Garcia has the unique familiarity with years of experience in representing and protecting clients’ rights with mental illnesses in post-Guilty Except Insane verdict hearings.

Hearings before the superior court can result in transferring jurisdiction and confinement to the Arizona Superior Court and Department of Corrections, continued confinement in the mental facility, or conditional release, among other results. Having an experienced attorney who can passionately advocate on your or your loved one’s behalf

Cases Not Involving Actual or Threatened Death or Serious Bodily Harm

If a person is placed under the jurisdiction of the superior court for a case not involving actual or threatened death or serious bodily harm, the court will set a hearing within 75 days from the date of commitment. This hearing determines whether the defendant is entitled to be released from confinement or the defendant meets the standards for civil commitment.

At this hearing, the defendant will have to show that they no longer suffer from mental disease or defect, and they are not dangerous. If the defendant fails to show this by clear and convincing evidence, they could be civilly committed.

Cases Involving Actual or Threatened Death or Serious Bodily Harm

If a person is placed under the jurisdiction of the superior court for a case involving actual or threatened death or serious bodily harm, the person will be sentenced to a term of confinement equal to the time they would have served if found criminally guilty (without sentence enhancers).

During this term of confinement, the defendant will have periodic reviews by the mental health facility to monitor the defendant’s progress. The mental health facility or the defendant may request a hearing on the defendant’s progress and release conditions. Based on the evidence presented at this hearing, the superior court may take one of several actions under A.R.S. § 13-3994(B):

1. If superior court determines that the patient still has a mental disease or defect and is dangerous, the superior court shall order that the patient remain committed at the secure mental health facility.

2. If the superior court determines that the patient no longer needs ongoing treatment for a mental disease or defect and is not dangerous, the superior court shall place the person on supervised probation for the remainder of the commitment term imposed pursuant to A.R.S. § 13-502(d).

3. If the superior court finds that the patient still has a mental disease or defect, that the mental disease or defect is in stable remission but the patient is no longer dangerous, the superior court shall order the patient’s conditional release.

4. If the Patient was sentenced as a “Dangerous Offender” under A.R.S. § 13-704; for second degree murder under A.R.S. § 13- 710; or for first degree murder under A.R.S. § 13-751(A), and the superior court finds that the patient no longer needs ongoing treatment for a mental disease or defect and the patient is dangerous, the superior court shall order the patient to be transferred to the state department of corrections for the remainder of the commitment term.

Conditional Release

Conditional release may be granted if the person seeking the privilege proves that public safety and protection will be protected and maintained by clear and convincing evidence.