I Want to Appeal, But How? When? Deadlines?

Before deciding to file an appeal, discuss the process, fees and the time involved with an experienced appellate attorney. In our experience, many people regret filing an appeal and will concede they did so based on anger, emotion or an improper motive to delay a final ruling.

Almost everyone respects the attorney who “never stops fighting,” but is it foolish at some point to “keep fighting?” It is too expensive for the client? And does the attorney even know how to navigate the appellate process?

If you or a loved one is interested in appealing a conviction, you should know, at a minimum, the following guidelines.

First, there are two things defendant must do to start the process. First, a notice of appeal must be filed within 60 days of judgment in a felony case (Cal. Rules of Court 8.308(a)) and withing 30 days of judgement in a misdemeanor case (Cal. Rules of Court 8.852(a)). The notice of appeal does not need to argue the grounds for the appeal or even identify the legal error(s) to be challenged on appeal.

Your attorney will generally file the notice of appeal on behalf of defendant, or instruct the defendant and assist him or her in doing so. This is filed in the trial court where the judgment was reached. A failure to do this or instruct and assist defendant in doing this may subject the attorney to discipline by the State Bar. See In re Benoit (1973) 10 Cal. 3d 72, 88.

Second, when defendant has been convicted through a no contest, nolo contendere or guilty plea in a felony case, but seeks to appeal the judgment of conviction (i.e., due to a denied motion to suppress evidence, a denied motion in limine, a denied Pitchess motion, etc.), he or she must request a certificate of probable cause to raise the claim on appeal. See Penal Code §§ 1237(a), 1237.5, Cal. Rules of Court 8.304(b)). The request for a certificate of probable cause must establish reasonable grounds to appeal the judgment. Cal. Rules of Court 8.304(b). The request for a certificate of probable cause must be filed within the same 60 days as for filing the notice of appeal for a felony case.

The trial court should certify any arguably meritorious appeal People v. Holland (1978) 23 Cal. 3d 77, 84, overruled on other grounds by People v. Mendez (1999) 19 Cal. 4th 1084, 1097. If the trial court refuses to issue the certificate of probable cause, defendant may challenge that decision by filing a petition for writ of mandate. In re Brown (1973) 9 Cal. 3d 679, 683, overruled on other grounds by Mendez, supra.

Trial counsel for defendant should file or assist defendant in filing a statement seeking a certificate of probable cause in order to render effective assistance of counsel. See Roe v. Flores-Ortega (2000) 528 U.S. 470, 480; People v. Santos (1976) 60 Cal. 3d 372, 376, overruled on other grounds by Mendez, supra.

The reader should be aware that one purpose of filing the notice of appeal is to trigger notice to the clerk and the court reporter(s) involved in the case to complete the transcripts within 20 days. Cal. Rules of Court 8.336(c)-(d).

Defendant or his counsel can then review the transcripts for completeness. If relevant materials are omitted, defendant or his / her counsel should file a notice of deficiency with the trial court requesting that the transcript be augmented with such materials. Cal. Rules of Court 8.155(b)(1).

If the clerk or reporter fails to comply with the request within 10 day or if a necessary document is not part of the record, defendant or his / her counsel should file a motion to augment the record in the reviewing court. Cal. Rules of Court 8.155(a), 8.340(c). The motion should explain why the requested augmentation is “useful on appeal.” People v. Gaston (1978) 20 Cal. 3d 476, 482.

Once a notice of appeal has been filed and the record prepared, the court will set a briefing schedule and give notice of this to counsel and / or defendant, with deadlines. Generally speaking, the opening brief in a felony case is due within 40 days of filing of the record in the reviewing court. Cal. Rules of Court 8.360(c). In a misdemeanor case, the opening brief is generally due within 30 days. Cal. Rules of Court 8.862.

If the brief is not filed within that time, the court will send a default letter providing defendant with an additional 30-day grace period in which to submit the brief. Cal. Rules of Court 8.360(c)(5).

If counsel believes that time will be inadequate, he or she should request an extension of time by an application for an extension of time filed under Cal. Rules of Court 8.50, which are granted upon a showing of good cause. See Cal. Rules of Court 8.63(a), 8.111(b) and 8.882(b).

This article only covers the all-important first steps in an appeal. What exactly should be stated and how it should be stated in the opening brief really should be left to an attorney to craft with great care, using his or her training, education and experience.

For more information about appellate issues in general, please click on the following articles: