Appeals And Writs

California Criminal Appeals and Writs

Criminal defendants who think they have been wrongfully convicted of a crime have options:

Initiate an Appeal by Filing a Notice of Appeal

Initiate an Appeal by Filing a Notice of Appeal

What is an Appeal? 

An appeal is NOT the same as asking for a new trial, but rather it is a request for a higher court to review the rulings or decisions of a lower court for errors in law or improprieties. The appellant must show a higher court that there was an error in how the trial was conducted. The appellant can only raise issues that are apparent from transcripts and records of the lower court.

You can only appeal if:

The appellate court does not:

The Appellate Court is the Appellate Division of the Superior Court for California misdemeanor appeals and the California Court of Appeal for felony appeals.

Who are the Parties?

The “Appellant” is the party who files the appeal.

The “Respondent” is the person opposing the appeal.

Filing the Appeal

A Notice of Appeal is filed with the appellate section of the trial court (California Superior Court) from which the appeal is taken. No filing fee is required.   The defendant or the defendant’s attorney initiates the appeal by filing a Notice of Appeal. As a general rule, once an appeal is filed and a sentence commenced, the trial court loses jurisdiction over the case.

The Notice of Appeal

There are also important deadlines that apply to appeals. Be sure not to miss the deadline for filing a notice to appeal, a missed deadline will most likely affect your appellate rights. Having a California appeals lawyer is essential.  The attorney will take the necessary measures to calculate the deadline for filing the notice of appeal. For felony cases, the notice of appeal must be signed and filed within 60 days following your trial court judgment.  60 days is not the same as 2 months. It is often best to file the notice of appeal at the earliest opportunity.

Normal Time

Cross-Appeal

After Guilty or Nolo Contendere Plea

Generally, by pleading guilty or nolo contender, or by admitting a probation violation, the defendant implicitly waives issues that could otherwise be raised on appeal and can add complexity to the notice of appeal.   Although complex rules govern what issues may be raised on appeal following such a plea or admission. There are two categories of exceptions to the general rule of waiver, both of which require the filing of a notice of appeal.

1. Noncertificate Grounds. A defendant need not seek a certificate of probable cause if the appeal is base on:

  1. Grounds that arose after the entry of the plea and that no challenge its validity (e.g., sentencing error); and2.
  2. The denial of a motion to suppress evidence under Pen Co Sec 1538.5.

The notice of appeal must state that it is based on noncertificate grounds; otherwise, the appeal may simply be dismissed.

2. Certificate of Probable Cause. This category requires the defendant to obtain a “certificate of probable cause” from the trial court.  A statement in support of a certificate of probable cause must also be filed along with the notice of appeal; written statement, executed under oath or penalty of perjury, stating appropriate grounds for the appeal. The application for a certificate of probable cause is NOT the equivalent of the notice of appeal. The statement, like the notice of appeal, must be filed within 60 days of the judgment.  Once you file your statement, the Superior court issues a certificate of probable cause or order denying a certificate within 20 calendar days after the statement of grounds for appeal is filed.

Untimely Filing

When the superior court receives a late notice of appeal, the clerk must mark it “Received [date] but not filed” and notify the party who submitted it that was not filed, because it was late. There are, however, two recognized situations in which a notice of appeal filed more than 60 calendar days after the judgment is considered timely under the doctrine of “constructive filing”:

Attorney Failed to Perform

  1. Superior court's final judgment can be appealed.

    The superior court’s final judgment can be appealed.

    When an incarcerated defendant reasonably relies on the attorney’s promises or representation that the attorney will timely file the notice of appeal, but the attorney fails to do so, the notice may be considered timely.

Constructive Filing

  1. When an incarcerated defendant delivers the notice of appeal to prison authorities within the 60-day period, but the superior court clerk does not receive it until after the period has expired, the notice will be considered timely.

 

Notification of the Appeal

When a Notice of Appeal is filed, the superior court clerk must promptly send a notification of the filing to the attorney of record for each party, to any unrepresented defendant, to the reviewing court clerk, to each court reporter, and to any primary reporter or reporting supervisor.

Preparing the Record

The clerk’s and reporter’s transcripts are automatically prepared under Cal. Rules of Court, (rules 8.320 to 8.336).

 

What is a Writ?

A writ is an extraordinary remedy only available when a party has no other adequate remedy at law, such as an appeal. Writs are a procedure for the reviewing court to review a legal issue. Typical writs include the writ of habeas corpus and the writ of mandamus. Writs can be used to go outside the court record and can include new evidence.

 

Call The Law Office of Shep Zebberman Today

The Law Office of Shep Zebberman is committed to defending your rights and your freedom. If you need help and you are looking to hire an appellate attorney for representation, we invite you to contact us. We can provide a free consultation. We have local offices in Los Angeles County and in Orange County.  Contact our offices at  (855) 770-1836 for a free consultation.