Appellate Procedure in the Court of Appeals
1.1. Where to File an Appeal
If the defendant was tried in one of Michigan’s 57 circuit courts, which hear felonies, an appeal from the judgment goes to the Court of Appeals. Michigan has only one Court of Appeals, with courtrooms in four locations around Michigan. If the defendant was tried in one of Michigan’s 105 district courts, which hear misdemeanors, an appeal from the judgment goes to the circuit court. Appeals to a circuit court are covered in Section B., below.
1.2. Types of Appeals
There are two kinds of appeals in Michigan: an appeal of right and an appeal by leave. An appeal of right means that Michigan law gives the defendant the right to appeal the judgment of the trial court, and the appellate court must hear the appeal so long as the defendant follows all the rules for filing the appeal. In almost all cases, a judgment of conviction of a felony gives a defendant an appeal of right to the Court of Appeals.
The Court of Appeals is not required to hear an appeal if:
Although a defendant would not have an appeal of right under the circumstances listed above, he or she could file an appeal by leave. An appeal by leave asks the Court of Appeals to exercise its discretion and hear the case, and the Court can grant or deny the right to appeal.
1.3. Time Limit for Filing an Appeal of Right
If the defendant does have the right to appeal a judgment, he or she must do it within the deadline set by law. When the defendant has the right to appeal, the appeal is called a “Claim of Appeal.”
A defendant appealing a judgment of a circuit court must file a Claim of Appeal within 42 days of:
1.4. Time Limit for Filing a Leave to Appeal
If a defendant does not have an appeal of right, he or she can file for leave to appeal, called an Application for Leave to Appeal. Michigan law sets the deadline for filing such an Application. The Application must be filed within the later of:
An Application for Leave to Appeal cannot be filed if the defendant has previously filed an appeal of right, if leave to appeal was previously granted, or if a previous Application for Leave to Appeal was denied.
1.5. Documents Required for a Claim of Appeal in the Court of Appeals
Michigan law provides a list of documents that must be filed with the Claim of Appeal. Jurisdiction in the Court of Appeals vests when the Claim of Appeal is filed along with the fee for filing. Other required documents include:
Within the 42 days that the defendant has to appeal, he or she must also file certain documents with the trial court:
1.6. Documents Required for an Application for Leave to Appeal in the Court of Appeals
For an Application for Leave to Appeal, the defendant must provide the Court with enough information for it to decide whether to grant the appeal. The information that must be submitted within the time for filing an Application is much more extensive than that required for a Claim of Appeal. The defendant must file all of the following:
The portion of the Application that includes the allegations of error and the defendant’s position on each allegation of error must be in the form of a brief, such as that required for a Claim of Appeal, discussed below. This is the most important document in the Application. It contains the defendant’s arguments for why the Application should be granted, supported by the facts of the case and the applicable law. The brief must be clear and persuasive for the Court to grant the Application; otherwise, the Court will refuse to hear the appeal, and the defendant’s appeal rights in the Court of Appeals are over.
1.7. Procedure After Filing a Claim of Appeal
Within 21 days of the date the defendant files a Claim of Appeal, he or she must provide the court with any trial exhibit, whether entered into evidence or not, in his or her possession. Next, the court reporter transcribes the record and files it with the trial court. Within 21 days of that filing, the defendant must serve the entire appeal record on the prosecutor.
At any time during the appeals process, the defendant may file a Motion for Peremptory Reversal. This is a motion for an immediate reversal of the decision of the trial court based on a claim that the error in the court below was so manifest or obvious that reversal should be granted without formal submission or argument. The judges on the panel reviewing the appeal must agree unanimously to reverse the judgment or order of the trial court. While peremptory reversals are uncommon, a defendant may file a motion for such a reversal if he or she can demonstrate that a clear error affecting the outcome of the trial occurred. Whether to file or forego this motion takes good judgment and a thorough knowledge of the law applicable to the error raised with the Court of Appeals. Making this decision requires an attorney who is an expert in appellate law and procedure.
The next step is filing a brief, described below.
1.8. Preparing the Brief for the Court of Appeals
The next step in the appellate process, whether the defendant filed a Claim of Appeal or was granted leave to appeal, is to file a brief. A brief is written argument explaining how the trial court made mistakes, how the mistakes affected the outcome of the trial, and the relief the defendant requests from the Court of Appeals (e.g., remand for new trial or dismissal of the charges). The defendant’s appellate brief must be filed within 56 days after the Claim of Appeal is filed, after an order granting leave to appeal is filed, or after the transcript is filed with the trial court, whichever is later.
The defendant’s brief can be no longer than 50 pages, no matter how many errors are being raised on appeal. The defendant can request permission to file a longer brief, but such requests are disfavored by the Court of Appeals and are granted only for “extraordinary and compelling” reasons. To cull all legal arguments into a 50-page brief requires a thorough understanding of appellate law and experience in writing briefs.
The contents of an Appellate Brief are strictly dictated by statute. Failure to follow the requirements could result in the brief being rejected or in the denial of oral argument, closing the defendant’s opportunity to provide a full argument for the appeal. The rules require the defendant to include, in this specific order:
The legal argument section of the brief is dictated by the detailed, specific requirements of the law, down to the typeface used. Statements of fact and the method by which an issue was preserved for appeal must be pinpointed in the record. Following all the requirements for the appellant’s brief can be time-consuming and frustrating, which is why experienced counsel is necessary for submitting a brief that will result in the reversal of the trial court judgment.
After the defendant files his or her brief, the appellee (prosecutor) files a brief, and the defendant may file a reply to that brief within 21 days of service of the other brief.
1.9. Oral Argument
A defendant does not have to argue his or her case before the Court of Appeals; the defendant may stipulate with the prosecutor that the case will be submitted on the briefs. However, taking advantage of the opportunity to argue before the Court of Appeals may increase the chance of success.
If the defendant requests oral argument on the title page of the appellate brief, he or she is generally entitled to oral argument. However, the case may be assigned to a panel of judges that reviews and disposes of the case without oral argument. This can occur when the panel unanimously decides that (1) the appeal is without merit, (2) the issue(s) raised on appeal have been recently authoritatively decided, or (3) the Court’s deliberation would not be significantly aided by oral argument because the briefs and record adequately present the all the facts and legal arguments it needs to decide the case.
If the Court allows oral argument, each side gets only 30 minutes to argue its case, regardless of the number or complexity of the issues raised. The Court may allow more time upon request or in its discretion at oral argument.
- Appellate Procedure in the Court of Appeals
- Appellate Procedure in the Circuit Court
Appellate Procedure in the Circuit Court
The procedure for an appeal in the circuit court is similar to that for an appeal in the Court of Appeals. The circuit court hears appeals from judgments of the district court. A defendant has an appeal of right from a judgment unless the judgment is based on a plea of guilty or nolo contendere. A circuit court may also hear an appeal by leave.
2.1. Deadline for Filing Appeal of Right or Application for Leave to Appeal
The deadline for filing an appeal of right and for an Application for Leave to Appeal in the circuit court is 21 days after:
2.2. Contents of Claim of Appeal
In addition to the Claim of Appeal, the exact language of which is set out in the law, the defendant must file:
2.3. Contents of Application for Leave to Appeal
An Application for Leave to Appeal must include the following:
As with a claim of appeal, documents that must be filed with an Application include:
In the circuit court, a defendant does not have the opportunity for an oral argument. Instead, the case is submitted on the Application, any Answer filed by the prosecutor, and any Reply filed by the defendant. The decision of the circuit court may not be appealed to the Court of Appeals as of right; the defendant must file an Application for Leave to Appeal with that court.
The provisions of Michigan law must be strictly followed whether the defendant is filing a Claim of Appeal or an Application for Leave to Appeal with the Court of Appeals or with a circuit court. Failure to do so may result in loss of the right to appeal, which is an important right in the criminal process because it allows for corrections of errors that led to the defendant’s conviction. Overturning a trial court judgment is not easy, but it is possible with the right counsel.
With all of the detailed requirements for an appeal, a defendant needs an attorney with substantial experience in appellate law and procedure to secure his or her rights, especially for complicated issues or a case in which the defendant raises multiple issues. At Spolin Law, we have successfully argued countless appeals in state and federal court using our proven appellate strategy. We understand that the appellate process can be confusing and overwhelming at times and are here to skillfully guide you through every step of the way. To learn how we may be able to help you or a loved one, do not hesitate to contact us at (866) 617-9620 for a free consultation.