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Postconviction Procedures

After a defendant is convicted of a crime, he may decide to file a postconviction motion or appeal his conviction. The types of postconviction motions the defendant may file differ from state to state. The defendant may file several different motions after a judgment has been entered against him.

Motion for a New Trial

A motion for a new trial is a request by the defendant for a second trial on the basis that there were significant legal errors that occurred during the first trial. Typically the motion should be filed shortly after the adverse verdict was rendered against the defendant. The trial judge who presided over the defendant’s first trial usually hears the motion.

Motion to Vacate or Set Aside the Judgment or Sentence

The defendant may file a motion to vacate or set aside a judgment if the judgment was void for some reason. The judgment could have been void because the offense charged was not a crime, the judgment was obtained contrary to the law, or because the trial court lacked proper jurisdiction over the defendant. The defendant may file a motion to vacate his sentence if the sentence was unduly excessive.

Grounds for Postconviction Motions

There are various grounds upon which a motion for postconviction relief may be granted. Among the grounds are:

  • Newly discovered evidence.
  • Prosecutorial or judicial misconduct.
  • If defendant’s due process rights were violated.
  • Incorrect jury instructions.
  • The evidence does not support verdict.


After the defendant is convicted, he may also file an appeal. Typically in most states and depending upon the crime, the defendant is entitled to one appeal of right.

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