What Is a Notice of Appeal?
At its most basic, a Notice of Appeal is a piece of paper filed with a clerk of the trial court that tells the trial court, the state, and the appellate court that the defendant is appealing the lower court’s judgment or sentence.
Who Can File a Notice of Appeal?
Usually, the defendant’s attorney files the Notice of Appeal for the defendant. If the defendant had appointed counsel for a plea or trial, that attorney must file the Notice of Appeal for the defendant if grounds exist for an appeal or if the defendant requests it. The attorney must file the Notice of Appeal along with a brief statement of the points to be raise on appeal.
If the defendant had a privately retained attorney, that attorney will ordinarily file the notice of appeal. The defendant, however, may file on their own if the attorney cannot or will not.
- What Is a Notice of Appeal?
- California Notice of Appeal Forms
- Deadline to File a Notice of Appeal
- What Happens After a Notice of Appeal is Filed?
- A Criminal Appeals Lawyer Can Help You File a Notice of Appeal
California Notice of Appeal Forms
Certain information must be included in the NOA. Your California appeals lawyer will use what is known as Form CR-120 (for a felony) or Form CR-132 (for a misdemeanor). These forms are available online at courts.ca.gov or in the office of the clerk of court for the trial court.
Felony Criminal Case Appeal Form CR-120
Form CR-120 instructs the defendant to provide the following information:
- The name of the defendant
- The defendant’s birthdate
- The defendant’s corrections number, if one exists
- The date of the order, judgment, or sentence appealed from
- A signature from the defendant and/or their attorney
The defendant must also indicate if the appeal follows a jury trial, a guilty or no-content plea, or another proceeding. If the appeal is following a plea, the defendant must state whether they are appealing the following:
- The sentence or other matter occurring after the plea
- A denial of a motion to suppress evidence
- The validity of the plea
- Some other reason, which must be specified
Requesting Appointment of an Attorney
The defendant must indicate on the felony criminal appeals form if they are requesting an appointment of an attorney for the appeal and if they were represented by an attorney at the trial court level.
Requesting a Certificate of Probable Cause
If the appeal is challenging a plea, the defendant must make a request for a certificate of probable cause. Ordinarily, a person may not appeal a judgment based on a plea of guilty or no contest. However, if the defendant can show a constitutional, jurisdictional, or other significant defect going to the legality of the plea, he or she may appeal if the trial court agrees that the defendant has sufficient grounds (has shown “probable cause”) to challenge the plea on appeal. The court then issues a certificate of probable cause to appeal.
If you have been convicted of a serious felony in California, you may be facing years in prison. Don’t give up. Contact Spolin Law P.C. for help. Call us today at (310) 424-5816. We will immediately begin working for you.
Misdemeanor Criminal Case Appeal Form CR-132
Form CR-132, for misdemeanor cases, is a much simpler form. It requires the defendant to provide the following information:
- The defendant’s name, address, phone number, and email address
- The appellant’s lawyer in the trial court proceedings and whether that lawyer is representing the appellant in the appeal
- The lawyer’s name, address, phone number, email address, and attorney number
- The type of judgment or order being appealed
- The kind of record of the proceedings that will be provided on appeal
- Whether the defendant wants a court-appointed lawyer for the appeal
- The date and the defendant’s signature
When a person appeals a misdemeanor, they must also file Form CR-134, either with the Notice of Appeal or within 20 days afterward. This form gives notice to the clerk of the record that the defendant wishes to use on appeal.
- What Is a Notice of Appeal?
- California Notice of Appeal Forms
- Deadline to File a Notice of Appeal
- What Happens After a Notice of Appeal is Filed?
- A Criminal Appeals Lawyer Can Help You File a Notice of Appeal
Deadline to File a Notice of Appeal
If appealing a felony, a defendant must file the Notice of Appeal within 60 days of the judgment or order being appealed. If appealing a misdemeanor, a defendant must file the Notice of Appeal within 30 days of the judgment or order the defendant is appealing.
These time limits are strictly enforced. If a defendant attempts to file an appeal out of time, the clerk of courts will not accept it for filing. While some extreme reasons may excuse a late filing, a defendant should not rely on exceptions and should file within the deadline.
Where to File a Notice of Appeal in California
A Notice of Appeal, whether for a felony or misdemeanor, must be filed with the clerk of court for the trial court that issued the judgment or sentence appealed.
However, some California counties have different procedures for filing the NOA, and a defendant should be certain to follow the procedure specified for the county. For example, in Orange County, a felony Notice of Appeal is filed in with the clerk in the Criminal Department of the Central Justice Center. In Sutter County, the Notice is filed with the clerk in the Traffic/Criminal Processing Division. In Santa Clara County, it is filed with the clerk of the Appeals Unit.
- What Is a Notice of Appeal?
- California Notice of Appeal Forms
- Deadline to File a Notice of Appeal
- What Happens After a Notice of Appeal is Filed?
- A Criminal Appeals Lawyer Can Help You File a Notice of Appeal
What Happens After a Notice of Appeal is Filed?
The Notice of Appeal triggers further steps in the appeals process, which include the following:
- The clerk of court must notify certain persons or entities of the appeal
- The clerk must prepare a record of the original proceeding
- The defendant may request a “stay of execution” of the sentence
Notification of Persons and Entities
When the clerk of courts receives and stamps the Notice of Appeal, the office of the clerk sends a copy of the Notice to the Court of Appeal (felony cases) or the Appellate Division of the trial court (misdemeanor cases), the California Attorney General, and the defendant or their counsel.
The Record of the Proceedings
Once the Notice of Appeal is filed in a felony case, the clerk assembles the transcripts of the case, which consists of the clerk’s transcript (CT) and the reporter’s transcript (RT). Both of these transcripts are necessary to allow the court of appeals to review the case.
The clerk’s transcript is a record of the documents filed in the case, such as the indictment, any motions to suppress, and court orders.
The reporter’s transcript is a record of what was said during the trial of the case.
If the Notice of Appeal is filed in a misdemeanor case, the defendant informs the clerk on Form CR-134 of the record they want to have prepared. The defendant and the state may agree that only a portion of the record is necessary for the determination of the appeal. The defendant must attach to the form a stipulation with the state of the parts of the record to be used on appeal.
The defendant must also check one of two boxes on Form CR-134 regarding the record of the oral proceedings (what was said in court). Because the defendant (except for an indigent defendant) must pay for the record of the proceedings, some defendants choose not to have the record prepared or choose to have only part of the record prepared. If possible, it is best to have the entire record of the oral proceedings if appealing a misdemeanor case.
If the defendant wants a record of the oral proceedings, they must indicate on the form whether they want:
- A “recorder’s record,” available if a court reporter recorded the proceedings;
- A transcript from an electronic recording of the proceedings, if such a recording was made;
- The official recording itself (and not a transcript of it); OR
- What is known as a “statement on appeal,” which is a written summary of the proceedings approved by the trial court. This must be filed with the Notice of Appeal. It may also be filed within 20 days of the Notice, but the defendant must serve the statement on the state themselves rather than having the clerk of court do it.
Once this form is filled out, the clerk’s office begins the preparation of the record requested.
Stay of Execution of the Sentence Pending Appeal
When a person is convicted of a crime, whether a felony or a misdemeanor, certain negative consequences follow. These may include imprisonment in the state or county jail or probation, which conditions the right of the defendant to remain free.
When a defendant files an appeal of their judgment or sentence, they have a significant interest in postponing the consequences of the judgment. If the defendant wins the appeal, the sentence or terms of probation might not be imposed at all.
Obtaining a Certificate of a Stay of Execution
California law provides for a “stay of execution of judgment” when a defendant appeals their case. The stay prevents the sentence from being carried out while the case is heard on appeal. Such a stay is not automatic except in a case where the defendant was sentenced to death. Rather, the defendant must request the trial court to issue a certificate of a stay of execution. If the trial court refuses to issue the certificate, the defendant may apply to the court of appeal for a stay.
Whether to grant or deny a stay is within the discretion of the court. Ordinarily, if the court finds that the appeal is not frivolous, that is, that it presents debatable questions meriting review by the court of appeal, it will issue a stay of execution. A court may not, however, relieve a defendant of the duty to register as a sex offender for certain sex offenses.
How to Get Released from Custody During an Appeal
A certificate of a stay of execution does not, by itself, grant the defendant’s release from custody. California law provides that if the certificate for a stay is filed, the Sheriff shall keep the defendant in custody without executing the sentence. To be released from custody, a defendant must also request that the court release them on bail or on their “own recognizance.” A defendant has a right to bail if they show:
- By clear and convincing evidence that they are not likely to flee
- By clear and convincing evidence that they do not pose a danger to the safety of any other person or to the community
- That the appeal is not for the purpose of delay and, based upon the record, raises a substantial legal question which, if decided in favor of the defendant, is likely to result in reversal
If you are going through the process of filing an appeal, you shouldn’t have to sit in prison while you wait. Although it can be difficult to get released from custody during the appeals process, Spolin Law P.C. will fight for your right to freedom. Call us today at (310) 424-5816.
- What Is a Notice of Appeal?
- California Notice of Appeal Forms
- Deadline to File a Notice of Appeal
- What Happens After a Notice of Appeal is Filed?
- A Criminal Appeals Lawyer Can Help You File a Notice of Appeal
A Criminal Appeals Lawyer Can Help You File a Notice of Appeal
A Notice of Appeal sets the appeal process in motion and triggers certain activities and rights. Filling out the Notice of Appeal fully and properly and on time is critical to a defendant’s rights. Engaging an experienced attorney to fill out and file the Notice of Appeal greatly benefits a defendant’s chances of success on appeal.
The award-winning California criminal appeals lawyers at Spolin Law P.C. know how to successfully file a Notice of Appeal that will guide you towards winning your appeal. With proven strategies, Mr. Spolin and his team of legal professionals have succeeded in countless cases. While prior success is not a “guarantee” of an outcome in a future case, it does indicate the knowledge and experience of an attorney.
To learn how Spolin Law P.C. can help you in your case, contact us today at (310) 424-5816.