Michigan Criminal Appeals Lawyer for Appeals of Right, Leave Applications and Post-Conviction Motions

Appealing a Michigan conviction or sentence? Start with the date of your judgment and the route the court rules give you

A criminal appeal asks a higher court to review what happened in the trial court. It is not a second trial. The Michigan Court of Appeals hears the case on the original record, which means the transcripts, the exhibits and the documents filed below. MCR 7.210(A). Most people who call me about an appeal were convicted after a trial in Kent County Circuit Court or pleaded guilty and now believe something went wrong, at the plea, at sentencing or before. Which of those happened decides the route, the deadline and the issues you can raise, so this page starts there. It also covers briefs, standards of review, the Michigan Supreme Court, and the post-conviction motions that come before and after a direct appeal.

The short answer. After a criminal trial you have an appeal of right to the Michigan Court of Appeals, and the claim of appeal is due within 42 days after entry of the judgment or order appealed from (MCR 7.204(A)(2)). After a guilty or no contest plea there is no appeal of right, and you apply for leave to appeal, generally by the later of 6 months after the judgment or 42 days after certain listed events (MCR 7.203(A)(1)(b); MCR 7.205(A)(2)). The rules call these time limits jurisdictional. After the Court of Appeals decides, an application to the Michigan Supreme Court is due within 56 days in a criminal case (MCR 7.305(C)(2)). When direct appeals are over, a motion for relief from judgment under subchapter 6.500 is limited to one motion, with narrow exceptions (MCR 6.502(G)). Civil appeals run on a different clock, generally 21 days. Find out which deadline applies to you before it passes.

I am Mitchell Bisson, a Grand Rapids lawyer. I have litigated for over 15 years and have been licensed in Michigan since 2015. I handle criminal appeals in the Michigan Court of Appeals and the Michigan Supreme Court. I was also counsel of record on a Ninth Circuit appeal, Rivera v. Corrections Corporation of America (CoreCivic), 999 F.3d 647 (9th Cir. 2021), where I obtained a reversal. That was a federal civil appeal, not a Michigan criminal one, and I mention it only so you know I have handled appeals. Prior results do not guarantee, warrant or predict a similar outcome.

This page covers Michigan criminal appeals and the post-conviction motions that go with them. My Michigan appeals lawyer page covers civil appeals and appeals generally, and my blog post How an Appeal Works in Michigan, Step by Step walks through the stages. Nothing here predicts how an appeal will end, and I do not promise outcomes. I do promise to tell you where you stand, including whether a deadline has already closed.

Which route and deadline apply to your case

Dates run from the entry of the judgment or order, which the rules define as the date it is signed or the date it is entered in the court’s register of actions. They generally do not run from the date you learned of the judgment or order. A claim of appeal has a narrow exception when service of the judgment or order was delayed beyond the time stated in MCR 2.602. In that case the claim of appeal must come with an affidavit showing the delay, and if the Court of Appeals finds the delay and the claim was filed within 14 days after service, it is treated as timely. MCR 7.204(A)(3). The rules also say that the time limit for an appeal of right and the time limit for an application for leave are jurisdictional. MCR 7.204(A); MCR 7.205(A).

The table is a map, not a calendar for your case. Which row you are in can turn on whether a post-judgment motion was filed, whether you asked for appellate counsel, and when transcripts were filed, so I read the register of actions before I say a date.

Appeal of right versus application for leave

Appeal of right. After a conviction at trial, you may file a claim of appeal. The Court of Appeals has jurisdiction over a final judgment or final order of the circuit court, as the court rules define those terms. To start the appeal you file the claim of appeal and the entry fee within the 42 days. With the claim you file a copy of the judgment, the court reporter’s certificate or a statement that the transcript has been ordered, proof of service, the register of actions and a jurisdictional checklist. MCR 7.203(A)(1); MCR 7.204(B); MCR 7.204(C).

Application for leave to appeal. A guilty or no contest plea changes the route. A circuit court judgment in a criminal case based on a plea is excluded from the appeal of right, so you apply for leave, and the Court of Appeals decides whether to take the case. The application states the date and nature of the judgment, the allegations of error and the relief sought, and it makes a concise argument on each issue. In a plea case it has to include the transcripts of the plea and the sentencing. MCR 7.203(A)(1)(b); MCR 7.205(B)(1), (4)(d).

Other cases that go by leave. Leave is also the route for an order that is not a final judgment, for a circuit court judgment entered on appeal from another court such as a district court, and for a judgment where an appeal of right could have been taken but was not filed on time. MCR 7.203(B)(1), (2), (5).

One application per judgment. In a criminal case, a defendant who has already appealed a judgment by right or by leave, or whose application for leave was denied, generally may not file an application for leave from that same judgment. The rule has a narrow exception when the Court of Appeals dismisses a claim of appeal for lack of jurisdiction. That is one reason the first filing has to be right. MCR 7.205(A)(4)(b), (5).

If you cannot afford a lawyer. At sentencing the trial court must tell you that you may appeal, that the court will appoint a lawyer if you cannot pay for one, and the deadline to request one: 42 days after entry of the judgment for a conviction after trial, and 6 months for a conviction after a plea. MCR 6.425(F)(1), (2), (G)(1). The United States Supreme Court has held that an indigent defendant convicted on a plea is entitled to appointed counsel for a first-tier appeal in the Michigan Court of Appeals. Halbert v. Michigan, 545 U.S. 605, 610 (2005). After a trial conviction, a timely request for appointed counsel that is granted on the court’s approved form counts as a timely claim of appeal. MCR 6.425(G)(1)(e).

Criminal appeals and civil appeals

Criminal and civil appeals both go to the Court of Appeals, but the clocks and the rules differ. A civil appeal of right is generally due within 21 days, and so is a civil application for leave. MCR 7.204(A)(1); MCR 7.205(A)(1). A criminal appeal has the 42 day claim of appeal, the 6 month leave window and the later dates described above. Appeals by the prosecution in criminal cases follow MCL 770.12. MCR 7.203(E). If your matter is a civil case, such as a business dispute or a civil rights claim, see my Michigan appeals lawyer page.

The record and the transcripts

The record decides the appeal. The Court of Appeals hears the case on the original record, so there are no new witnesses. The record consists of the original documents filed in the trial court, the transcript of the testimony and other proceedings, and the exhibits. Evidence that the judge excluded, and the proceedings about it, are part of the record too. MCR 7.210(A)(1), (3).

Ordering the transcripts. The appellant is responsible for securing the filing of the transcript and, unless the rules provide otherwise, orders the full transcript of testimony and other proceedings from the court reporter. The claim of appeal has to come with the court reporter’s certificate, a statement that the transcript has been ordered, or a statement that there is no record to be transcribed. The trial court can order less than the full transcript on a motion filed within the time for taking the appeal. MCR 7.210(B)(1); MCR 7.204(C)(2).

When a transcript cannot be obtained. If the court reporter cannot produce a transcript, the appellant moves in the trial court to settle the record and files a proposed statement of facts. The motion is due within 56 days after the available transcripts are filed, or within 14 days after the claim of appeal if no transcripts are available. MCR 7.210(B)(2)(a).

Why I start with the record. An issue has to be tied to something in the record, an objection, a ruling, a statement. I read the whole file and the transcripts before I tell you which issues are worth raising and which are not.

Briefs

Deadlines. In most criminal appeals the appellant’s brief is due 56 days after the latest of the claim of appeal, the certification of an order granting leave, or the filing of the transcript or a settled statement of facts. It is due in 28 days in an interlocutory criminal appeal. The appellee’s brief is due 35 days after service of the appellant’s brief, or 21 days in an interlocutory criminal appeal. In most criminal appeals the parties may extend a brief for 28 days by signed stipulation, and the Court of Appeals may extend the time on motion. In an interlocutory criminal appeal, only the Court of Appeals can extend the time, on motion. A party that fails to file a brief on time forfeits the right to oral argument. MCR 7.212(A).

Length and form. Briefs are limited to 16,000 words. A motion to file a longer brief is disfavored and is granted only for extraordinary and compelling reasons. The brief sets out the questions presented, the facts with references to the record, the argument on each issue and the relief requested. MCR 7.212(B), (C).

What a good brief does. It picks the issues the record supports and states the standard of review for each one. Raising every possible issue weakens the ones that matter, so I choose.

Standards of review and preserving issues

The standard of review often decides an appeal. The Court of Appeals does not ask whether it would have ruled differently. It asks whether the ruling is wrong under the standard that applies to that kind of ruling.

De novo and clear error. Questions of constitutional law are reviewed de novo, meaning the appellate court decides them fresh. A trial court’s findings of fact are reviewed for clear error. In an ineffective assistance claim, the Michigan Supreme Court has described the review that way: findings of fact for clear error and the constitutional question de novo. People v. Trakhtenberg, 493 Mich. 38, 47 (2012).

Abuse of discretion. Many trial court rulings, including many evidentiary rulings, are discretionary. An abuse of discretion occurs when the trial court chooses an outcome outside the range of reasonable and principled outcomes. People v. Babcock, 469 Mich. 247, 269 (2003).

Plain error. An issue that was not raised in the trial court is unpreserved. An unpreserved claim of error is reviewed for plain error affecting substantial rights. The defendant must show that an error occurred, that it was plain, meaning clear or obvious, and that it affected substantial rights, which generally means it affected the outcome. Even then, reversal is warranted only when the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the proceedings, independent of the defendant’s innocence. People v. Carines, 460 Mich. 750, 763 (1999). An unpreserved issue is not automatically lost, but the standard is harder to meet.

Sentencing issues. A party may not raise on appeal an issue about the scoring of the sentencing guidelines, or about the accuracy of information relied on at sentencing, for a sentence within the guidelines range, unless the issue was raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand in the Court of Appeals. MCR 6.429(C). For a minimum sentence within the guidelines range, the statute limits a remand for resentencing to an error in scoring the guidelines or inaccurate information relied on in determining the sentence. MCL 769.34(10).

Ineffective assistance, Ginther hearings and motions to remand

Many criminal appeals raise a claim that trial counsel was ineffective. That claim often depends on facts that are not in the trial transcript, such as what counsel knew, what counsel was told and why counsel did or did not act. Michigan practice is to make that record in the trial court, at a hearing commonly called a Ginther hearing. People v. Ginther, 390 Mich. 436, 442-43 (1973).

During an appeal of right, the usual ways to ask for one are a motion to remand in the Court of Appeals or a motion for a new trial in the trial court under MCR 7.208(B), filed within the time for the appellant’s brief (MCR 7.212(A)(1)(a)(iii)). A motion to remand must identify an issue that is of record and has to be decided first by the trial court, or an issue that needs a factual record. It must be supported by an affidavit or an offer of proof of the facts to be established. When a motion to remand is filed, further proceedings in the Court of Appeals are generally stayed until the motion is denied or the trial court proceedings are complete. MCR 7.211(C)(1).

Because a remand motion has strict content requirements and affects the schedule, I decide early whether a case needs one. Whether the claim succeeds depends on the evidence at the hearing and on the standard of review above, and I do not predict that.

Motions in the trial court: withdrawing a plea, a new trial and correcting a sentence

Some of the most important steps happen in the trial court, and each has its own timing. I describe them here at a general level. Whether any of them fits your case depends on the record, and all of them are narrow.

Motion to withdraw a plea after sentencing. A defendant may move to withdraw the plea within the time for filing an application for leave to appeal, as the rule defines that time. After that, relief is available only under subchapter 6.500. MCR 6.310(C). A defendant convicted on a plea also may not raise on appeal a claim that the plea was not understanding, voluntary or accurate, or a claim that the plea rules were not followed, unless the defendant moved in the trial court to withdraw the plea on that basis. MCR 6.310(D). That preservation rule is why a plea case often starts with a motion in the trial court, ahead of the application for leave.

Motion for a new trial. A motion for a new trial may be filed before a timely claim of appeal. After a claim of appeal is filed, it can be made only through the procedure in MCR 7.208(B) or the remand procedure in MCR 7.211(C)(1). If the defendant can appeal only by leave, or did not file a timely claim of appeal, the motion is due within the time for filing the application for leave. The court may order a new trial on any ground that would support appellate reversal of the conviction, or because it believes the verdict resulted in a miscarriage of justice. MCR 6.431(A), (B).

Motion to correct an invalid sentence. The court may correct an invalid sentence on its own initiative or on motion by either party, and the timing for the motion follows the same pattern as a motion for a new trial. When the court acts on its own initiative, it must give the parties at least 14 days’ notice and an opportunity to be heard, and the correction must come within 6 months of the entry of the judgment of conviction and sentence. MCR 6.429(A), (B).

How these motions affect the appeal deadline. A timely motion can move the date. A claim of appeal is due 42 days after an order denying a timely motion for a new trial, a directed verdict or to correct an invalid sentence. In a plea case, an application for leave can be filed within 42 days after an order deciding a timely motion to withdraw the plea, for a directed verdict, to correct an invalid sentence or for a new trial. MCR 7.204(A)(2)(d); MCR 7.205(A)(2)(b)(iv). A late or improper motion does not move the date, so I confirm the timing before I file.

Motions for relief from judgment under MCR 6.500 after the appeals end

Subchapter 6.500 is the route for a conviction that is no longer subject to appellate review. MCR 6.501. It is narrow, and I treat it carefully.

One motion. A defendant may file one motion for relief from judgment per conviction. A second or later motion is allowed only for a retroactive change in the law that occurred after the first motion, a claim of new evidence not discovered before the first motion, or a final court order vacating a conviction that is described in the judgment or on which the judgment was based. The court may waive the one-motion limit if it concludes there is a significant possibility that the defendant is innocent. The motion has to state every ground available to the defendant that the defendant knows of or should know of with due diligence. MCR 6.502(A), (G)(1), (2). A motion that leaves out a ground can cost you that ground later, so I do not file one casually.

The limits on relief. The court may not grant relief if the motion seeks relief from a judgment that can still be challenged on appeal, raises grounds already decided against the defendant on a prior appeal or motion, unless a retroactive change in the law has undermined that decision, or raises grounds, other than jurisdictional defects, that could have been raised on appeal or in an earlier motion, unless the defendant shows good cause for not raising them and actual prejudice. The rule defines actual prejudice differently for convictions after trial and for convictions on a plea, and the court may waive the good cause requirement if it concludes there is a significant possibility that the defendant is innocent. The defendant carries the burden. MCR 6.508(D).

Form. The motion is not noticed for hearing, it must be verified, it is subject to a page limit, and it must be substantially in the form approved by the State Court Administrative Office. MCR 6.502(C).

Federal habeas corpus. A federal habeas corpus petition is a separate federal case with its own one year limit, which generally runs from the date the judgment became final on direct review or when the time for seeking that review expired. Time during which a properly filed state post-conviction application is pending is not counted. 28 U.S.C. § 2244(d). I mention it because the state and federal clocks interact. The information about federal habeas corpus on this page is general.

The Michigan Court of Appeals and the Michigan Supreme Court

The Court of Appeals. A conviction in Kent County Circuit Court is appealed to the Michigan Court of Appeals, by right after a trial and by leave after a plea. That court reviews the record, the briefs and the oral argument if there is one.

The Michigan Supreme Court. The Supreme Court is the next step, and review is by application for leave to appeal. In a criminal case the application is due within 56 days after the Court of Appeals order or opinion resolving the appeal, including an order denying leave, or after an order denying a timely motion for reconsideration. The application must show a ground the rule lists, such as an issue that involves a legal principle of major significance to the state’s jurisprudence, a Court of Appeals decision that is clearly erroneous and will cause material injustice, or a decision that conflicts with a Supreme Court decision or another Court of Appeals decision. MCR 7.305(B), (C)(2).

What to expect. There is no oral argument on an application for leave unless the Court orders it, and review is limited to the issues raised in the application unless the Court orders otherwise. If leave is denied after a Court of Appeals decision, that decision becomes the final adjudication. In some cases an application can be filed before the Court of Appeals decides, within 42 days after the claim of appeal or application is filed, but only on the grounds the rule allows. MCR 7.305(C)(1), (H), (I).

What I can and cannot do in a Michigan criminal appeal

What I can do. I can read your judgment, the register of actions and the transcripts and tell you which deadline applies. I can file the claim of appeal or the application for leave. I can move in the trial court to withdraw a plea, for a new trial or to correct a sentence where the rules allow it, and move to remand when the record needs more facts. I can write and file the brief, argue the appeal if there is argument, and apply to the Michigan Supreme Court.

What I cannot do. I cannot promise a reversal, a new trial or a shorter sentence. I cannot extend a jurisdictional deadline, and if one has run, I will tell you what the rules still allow. I cannot add new witnesses or new evidence to a direct appeal, because the court reviews the original record. I cannot raise an issue the record does not support. My appeals work is in Michigan courts, and the information on this page about federal habeas corpus is general and is not advice on a federal petition.

How I handle a Michigan criminal appeal

1. The deadline check. I get the judgment, the sentencing date and the register of actions, work out whether you are on an appeal of right or an application for leave, and calendar every date. If a window has closed, I tell you that first.
2. The route. After a trial, I file the claim of appeal. After a plea, I look at whether a motion to withdraw the plea has to come first to preserve the issue, then at the application for leave.
3. The record. I order and read the full transcripts, check the exhibits and the file, and settle the record if a transcript cannot be obtained.
4. Trial court motions or remand. If an issue needs facts that are not in the record, I decide whether to move for a new trial, to correct the sentence or to remand for an evidentiary hearing.
5. The briefs. I write the appellant’s brief within the 56 days, respond to the prosecution’s brief, and prepare for argument if the court sets one.
6. The decision. The Court of Appeals issues an opinion or an order. I explain it to you and the next deadline that follows it.
7. The Supreme Court and after. If it makes sense, I prepare the application for leave within the 56 days. When direct appeals end, we talk about whether the narrow 6.500 route fits.

Ways a criminal appeal can end

Whether any of these is available depends on the record, the issues and the court. None is automatic, and I do not predict which one a case will reach.

Affirmance. The Court of Appeals can affirm the conviction and sentence. You can then apply to the Michigan Supreme Court within the 56 days.

Reversal, vacatur or remand. The court can reverse or vacate a judgment, or send the case back to the trial court for further proceedings, such as an evidentiary hearing, a new trial or a resentencing. A remand or a reversal can lead to more proceedings in the trial court.

Dismissal for lack of jurisdiction. A claim of appeal filed after the 42 days can be dismissed for lack of jurisdiction. The appellant can move for reconsideration of a dismissal within 21 days. A delayed application for leave after a dismissal is available only if the claim of appeal itself was filed on time and the application comes from the same judgment, and it must be filed within 21 days after the dismissal order or an order denying reconsideration. When the claim of appeal was late, the route is an application for leave to appeal, which in a criminal case generally must be filed within 6 months after the judgment. MCR 7.203(B)(5), (F); MCR 7.205(A)(2), (A)(4)(b).

Denial of leave. The Court of Appeals or the Supreme Court can deny an application for leave. After a denial in the Supreme Court, the Court of Appeals decision becomes final. MCR 7.305(I)(3).

Where your Michigan criminal appeal will be heard

A felony conviction from the Kent County Circuit Court, the 17th Circuit, is appealed to the Michigan Court of Appeals. A final judgment of the circuit court that was entered on appeal from another court, such as a district court, can be taken to the Court of Appeals only by leave. MCR 7.203(A)(1)(a), (B)(2). The Michigan Supreme Court sits above the Court of Appeals and decides applications for leave. I work from my office in Grand Rapids, and I confirm at the consultation which court your appeal belongs in.

Why people hire me as their Michigan criminal appeals lawyer

You deal with the lawyer handling your appeal from the first call to the last day. I tell you the strengths and weaknesses of the appeal straight, including what the deadline is, what the record supports and what an appeal can and cannot change. I read the record before I advise you, and then we decide together how to proceed.

Fees depend on the stage, the length of the record and whether the case needs a hearing in the trial court. I explain my fee arrangement at the consultation, before you decide whether to hire me.

Related Michigan pages

For civil appeals and appeals generally, see my Michigan appeals lawyer page, and for the stages in plain English, my blog post How an Appeal Works in Michigan, Step by Step. For the steps that lead up to a conviction, see Felony Charges in Kent County: From Arraignment to Trial, What Happens After an Arrest in Kent County and my Grand Rapids criminal defense lawyer page. If you are on probation, see my Grand Rapids probation violation lawyer page. For short answers on other Michigan legal questions, see the Michigan legal FAQs page.

Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan. Your Rights, My Fight!

Contact me 24/7 by text or WhatsApp at (616) 295-7414, a number for texts and WhatsApp that is separate from the office lines. Need to appeal a Michigan conviction or sentence? Call for a free initial consultation: (616) 213-3327 | MBisson@BissonLegal.com

This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.