Filing a criminal appeal in California is oftentimes a drawn out and complicated process. If you plan on taking appellate action, knowing the basics of how it functions is crucial. The length of this appeals process varies from case to case, ranging anywhere from a couple of months to a couple of years. Nevertheless, while some cases may take longer than others to resolve, it is important that all appeals are filed quickly after a conviction sentencing.
Before filing, you must first confirm that you have a case that warrants an appeal. It is important that you reach out to an appellate attorney, who will look through the details of your case to identify any legal errors and advise you on what next steps may be.
If the attorney confirms you are eligible, and you decide to proceed with an appeal, you will start the appellate process by filing a Notice of Appeal in the superior court. For misdemeanor cases, the deadline to file is 30 days from the date of judgement. Felony offenses, on the other hand, hold a 60 day deadline.
While direct appeals must be filed within this 30 and 60 day window, there are other types of post conviction relief that may be submitted after this deadline has passed. Common examples include a California Writ of Habeas Corpus and an Application for Commutation of Sentence.
Can I file a late appeal?
In some cases, extensions may be granted for defendants who miss the designated deadline. In compliance with the 2018 California Rules of Court, in instances of public emergency, defendants will receive a longer time window to appeal.
Additionally, in the event that your attorney fails to provide proper assistance during the appeals filing process, the traditional 30 or 60 day deadline no longer applies. For example, if your attorney does not inform you of your right to appeal or provides misinformation about the deadline of your appeal, you may be eligible for an extension.
Furthermore, cases of constructive filing also serve as a proper grounds for appellate extension. This occurs when the appeal does not make it to the courthouse on time despite genuine efforts from the defendant. Filing the appeal with the wrong court or mailing delays that are out of your control are just some instances in which a constructive filing extension may be offered.
Certificate of Probable Cause
In addition to submitting a Notice of Appeal, you must file a Certificate of Probable Cause (CPC) which legitimizes the basis of the appeal. The court then receives 20 days to review the submission and either grant or deny the CPC.
Notice of Designation Record on Appeal
Within 10 days of filing your Notice of Appeal, you must also file a Notice of Designation Record on Appeal. Doing so will notify the involved parties (including the court clerk, court report etc) and facilitate the collecting of trial records and transcripts which will be used in the appellate proceedings.
Once the primary paperwork has been completed and all the trial records have been compiled, the next step in the appellate process is the preparation of the opening brief. In an opening brief, your appeals attorney provides a summary of your trial, presents their argument, and requests a certain outcome.
The opening brief is expected to be submitted within 40 days of when the Notice of Designation Record on Appeal was filed. This is followed by the respondent’s brief which is filled by the opposing counsel within 30 days of the opening brief. Lastly, once the respondent’s brief is filed, the appellant is given 20 days to counter the respondent’s brief what is called the reply brief.
The next steps in the appellate process are the oral arguments, during which attorneys will be given the chance to argue their case in person and answer any lingering questions the presiding judge may have. You can expect these oral arguments to take place a few weeks after the filing of the briefs.
Contact Spolin Law P.C. About an Appeal in California
If you or a loved one plan on appealing a criminal conviction or have questions about your eligibility for an appeal or extension, don’t hesitate to reach out to Spolin Law P.C. today.