California Appeals: How Long Does an Appeal Take?Published on February 19, 2020
If you are interested in appealing your criminal conviction, it is important to understand the timeline of the process. An appeal can take anywhere from a few months to years depending on the unique factors involved. But, in every case and appeal needs to be filed quickly. However, the decision will not be immediate.
You should talk with a Los Angeles appeals lawyer at Spolin Law P.C. regarding the California appeals timeline. This can give you realistic expectations of what to expect.
Appeal Filing Deadline
The first step in a criminal appeal is determining if you are eligible. Immediately after a conviction sentencing, you should speak to an attorney about an appeal.
Your lawyer will carefully review your case for legal errors. If there is evidence that a mistake of law was made during your trial or sentencing, then you have a valid reason to file an appeal.
Next, you must determine if you want to appeal.
If so, you need to file a Notice to Appeal in the superior court. For felonies, you have 60 days to file a notice of appeal in a criminal case from the date the judgment was entered. For misdemeanors, this deadline is only 30 days.
There are other types of post-conviction relief that can be filed after the 60-day or 30-day window, including a California Writ of Habeas Corpus and an Application for Commutation of Sentence. However, traditional or “direct appeals” must be filed within this deadline.
Can You File an Appeal Late?
There are very few reasons why a California court will give you more time to file an appeal. There are possible extensions under the 2018 California Rules of Court, which allows for more time following public emergencies.
You might have grounds for an extension if your trial attorney failed to perform a duty related to a possible appeal. A common example is if your attorney neglected to inform you of your right to appeal. Basically, if you were not informed of your right to appeal, and did not learn of the right until after the filing deadline, call a Los Angeles appeals lawyer right away.
Another possible failure is not filing a timely notice of appeal after you asked your attorney to do so. In this situation, contact Spolin Law P.C. right away to get new representation.
You may also consider an extension for constructive filing. This occurs when you make a good faith attempt to file your notice of appeal, but it is not received in time. For instance, you may represent yourself initially and file in the wrong court. Or, you may ask your jail or prison officials to mail your notice of appeal, and it was mailed or arrived late.
You May Need a Certificate of Probable Cause
If you entered a guilty or nolo contendere plea, admitted to a probation violation, or convicted after an unlawful search and seizure, then you must also file a certificate of probable cause. This states that the trial was unlawful in some way. This is a written statement that you or your attorney provide under oath.
You must deliver the statement to the trial court, which issues the certificate. The trial court has 20 days to deny or approve your request for a certificate of probable cause.
What Happens After Filing a Notice to Appeal
Once you file the Notice to Appeal, the other parties must be notified. The superior court clerk will send a notification of the filing to each parties’ attorney, any unrepresented defendant, the reviewing court clerk, and to each court reporter.
Within 10 days of filing the Notice of Appeal, you must file a Notice of Designating Record on Appeal.
The court reporter is notified because they must prepare the transcript. If there was not a court reporter, the court creates a transcript from the electronic records of the proceedings. Additionally, you may obtain a clerk’s transcript. This encompasses all of the materials collected and placed in the case file during the proceeding.
Filing Your Opening Brief
After the initial appeal paperwork is filed and the trial court record is compiled, you must submit an opening brief. This brief is prepared by your appeals lawyer and can be lengthy.
The brief provides a summary of the trial, asks for a certain outcome, and provides a supporting argument.
For cases in the Court of Appeal, your opening brief must be filed within 40 days after the record is filed. The respondent’s brief must be filed within 30 days of your opening brief. Then, you have 20 days to file a reply brief to the respondent’s brief.
Oral Arguments for the Appeal
After the briefs are filed, the next step is oral arguments. The court will notify you of the hearing date. This may be weeks after the briefs are filed. It depends on the court’s schedule.
Oral arguments allow your lawyer to argue your grounds for an appeal to the judge in person. Depending on the court in which your appeal takes place, your attorney may have up to 30 minutes to make your case. During this time, your attorney may also answer questions from the appellate court judge.
Have Questions About an Appeal in CA? Contact Spolin Law P.C.
Interested in appealing your criminal case? Contact Spolin Law P.C. right away. Aaron Spolin was previously a prosecutor and an award-winning criminal defense and appeals attorney.
Criminal Appeals: Can I Appeal a Juvenile Verdict?Published on February 6, 2020
California has an alternative criminal justice system for minors. While the proceedings still take place in court, they are not the same as in a criminal trial.
Juveniles charged with crimes must go through several hearings. The last of these hearings is called a disposition hearing. That is when the judge makes the final decision about a juvenile’s fate. It’s a lot like the sentencing phase of a criminal trial.
Similar adults, a juvenile can appeal this final decision.
When Should Juveniles Appeal?
Since the juvenile justice system’s goal is rehabilitation rather than punishment, juvenile offenders do not have the same incentives to appeal.
However, there are scenarios when a judge’s disposition should be reversed. If the young offender is innocent, if their rights were violated, or if the court order is unacceptable, a criminal appeals lawyer can and should appeal the judge’s decision.
The Juvenile Appeals Process
Before filing a formal appeal in a juvenile case, it’s necessary to outline the different stages of the juvenile criminal justice process. At each stage, there are opportunities to contest. And in some cases, ask for a new hearing on certain issues.
The California juvenile justice process involves the following:
When a minor is arrested, their fate is initially decided by a probation officer. Depending on the crimes’ severity, a juvenile may simply be released on probation. The officer may also order the youth to be detained and recommend that the District Attorney (DA) file formal charges.
When the minor his detained, or when the DA files criminal charges, a hearing will determine whether detention should continue, or if the juvenile should be detained until the next hearing.
At this stage, a Los Angeles juvenile defense lawyer can contest the the DA’s petition and present evidence. If they are unsatisfied with the result, they can request a new hearing.
In some cases, the DA may request that the juvenile be tried as an adult. For very serious crimes, there is no need for a fitness hearing because adult charges are mandatory.
During this hearing, the DA will present evidence as to why the minor should be treated as an adult. Of course, the defense can argue why the case should stay in the juvenile system. This is an extremely important stage of the process because appealing this decision is very difficult.
If the case stays within the juvenile system, the next stage is the jurisdiction hearing. Like in a criminal trial, this hearing’s purpose is to determine what actually happened. Both sides are allowed to present evidence and cross-examine witnesses. However, the facts will not be decided by a jury. If the judge determines that the available evidence points to the juvenile’s guilt, the case will move to the next stage.
During this part of the process, the focus is not only on how to punish a juvenile but also on how to treat or rehabilitate them. Another important difference is that a judge can decide to “set aside” or cancel the decision about jurisdiction. In other words, the verdict can be canceled if their legal team is successful at this stage. If not, the judge will determine the conditions of detention and probation.
How Can I Appeal My Child’s Verdict?
There are three ways to appeal a juvenile case. First, and while it’s not a formal appeal, your lawyer should try to get a new hearing if the judge rules against your child at the detention phase.
Second, if the judge rules that your child should be treated like an adult, you may file a writ with the Court of Appeals. This isn’t a formal appeal either, but it can delay the process and keep the case in the juvenile system.
Third, you can file an official appeal within 60 days of the disposition hearing. As with a criminal case, your appeal must show that a legal mistake hurt your son’s or daughter’s case.
There are many possible arguments to make in favor of an appeal. A lawyer may argue that evidence was improperly included or rejected, or that the authorities violated your child’s rights at any point during the process.
A California Juvenile Lawyer Can Help
When a minor faces criminal charges, their future hangs in the balance. With so much at stake, these cases require quick, thorough, and aggressive action from the defense.
If you or a loved one received a bad result after a juvenile disposition hearing, you must act fast if you want to appeal.
Aaron Spolin’s Book, Witness Misidentification in Criminal Trials, is Admitted to United States Library of Congress.Published on February 4, 2020
This past month the United States Library of Congress admitted into its collection Witness Misidentification in Criminal Trials: Reforming Identification Procedures to Protect the Innocent. The book, written by criminal appeals attorney Aaron Spolin, discusses the dangers of witness misidentification, which is the leading cause of wrongful convictions in the county.
The book summary detailed on the back cover is copied below:
Witness misidentification is the leading cause of wrongful convictions in the United States. Among former death-row inmates proven innocent by post-trial DNA evidence, more than half of their cases involved a mistaken eyewitness identification. And the problem is not limited to death-row inmates: a comprehensive 2012 study by Marvin Zalman, a professor of criminal procedure, concludes that up to 2,000 individuals are wrongfully convicted of felonies each year. Combating witness misidentification is perhaps the biggest step we can take to fight his injustice. This book discusses the problems of witness identification, shows how identification procedures contribute to faulty convictions, and suggests reforms that would drastically reduce the potential for misidentification. Aaron Spolin is an award-winning criminal appeals attorney and former prosecutor. He leads Spolin Law P.C., a firm that handles criminal appeals, writs, and post-conviction relief.
The book, which has a Library of Congress Control Number of 2019-919901, can be purchased at major booksellers, including here at Amazon
For more information about wrongful convictions or to speak with one of the attorneys at Spolin Law about a particular case, call us at (310) 424-5816.