California Appeals: How Long Does an Appeal Take?
Posted on Wednesday, February 19th, 2020 at 5:52 am
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.