Right to Assistance of Counsel: First Appeal

Created by FindLaw's team of legal writers and editors.

While we've all heard the phrase, "You have the right to an attorney. If you can't afford one, one will be appointed to you," but does that right attach to all criminal proceedings, including the appellate process? In fact, it does. A criminal defendant's Sixth Amendment right to assistance of counsel has been extended by the U.S. Supreme Court to include representation during the first appeal after conviction.

This stage is sometimes called the "appeal as a matter of right." A person who's been convicted of a crime may have certain options for relief in both state and federal court.

Below you'll learn key information about the differences between an appeal as of right and a discretionary appeal; your right to assistance of counsel at the first appeal; and where to go for further information and legal assistance.

Appeal as of Right vs. Discretionary Appeal: What's the Difference?

To begin with, not all appeals are mandatory. Typically, the first appeal from a decision made by a trial court is always an appeal “as of right.” In almost all U.S. states, an appellate court hear any appeal coming directly from a trial court’s decision. The attorney for the defendant, now called the "appellant," will file a notice of appeal or other similar document; thus beginning the appeals process.

A discretionary appeal typically comes after the first appeal, and the petitioner usually sends their request to the state's highest court, i.e. the Supreme Court in that state. Litigants don't have a legal right to a discretionary appeal -- meaning the highest court in the state (or the U.S. Supreme Court if this is a federal case) has discretion whether to hear the case or simply deny the appeal, and there's no right to the assistance of counsel in this situation.

For example, let's say you wanted to appeal a criminal conviction in California. Your first appeal "as of right" would be sent to the California Court of Appeal. Here, you'd be entitled to have the court hear your appeal and to the assistance of legal counsel. If your appeal is denied after a hearing, there's always the possibility of petitioning the California Supreme Court, but that's a discretionary appeal and you're not entitled to the right of assistance of counsel. Of course, you may always hire a skilled criminal defense attorney to assist you in the appeals process.

If You Can't Afford to Hire an Attorney for a First Appeal

Just as with the right to assistance of counsel at earlier stages (such as preliminary hearing and trial), the government appoints an attorney to represent any criminal defendant who can't afford a lawyer for a first appeal. For any subsequent appeal, the person usually must pay to hire an attorney. In many states, however, public interest or civil rights groups sometimes represent convicted persons for free at subsequent appeals. There are also many private criminal attorneys who offer free initial case evaluations.

Get Legal Help Understanding Your Right to Counsel in the Appeals Process

While you have the right to court-appointed counsel for your first appeal, you can speak with other attorneys at any point in your case, either for a second opinion or to join your defense team. You may consider doing so, particularly with an appeal, as there are often attorneys who specialize in certain areas, such as DNA evidence, which may be at issue in your case. Find out more by contacting a litigation and appeals attorney near you to discuss your case and find out about your options.

Next Steps

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