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:

  • The defendant pleaded guilty or nolo contendere to a criminal charge, whether through a plea bargain or otherwise
  • The defendant misses the deadline to appeal his or her conviction
  • The defendant is appealing a decision of a circuit court that decided an appeal from the district court

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:

  • the entry of the judgment or order
  • an order denying a timely motion (42 days from the judgment) for the appointment of appellate counsel (if the trial court grants a motion for appointment of counsel that was filed within 42 days of the entry of judgment, the appeal is deemed filed)
  • the entry of an order denying a motion for a new trial, for directed verdict of acquittal, or to correct an invalid sentence, if the motion was filed within the time for filing an appeal of right, that is, 42 days from the entry of judgment.

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:

  • 6 months from the entry of judgment
  • 42 days after
    • an order granting or denying a request for appellate counsel if the request was made within 6 months of the entry of the judgment
    • the filing of transcripts ordered after the court grants a request for counsel, if the defendant requested counsel within 6 months after entry of the judgment
    • the filing of transcripts requested by an indigent defendant to pursue a leave to appeal
    • an order deciding a timely motion to withdraw a plea, for a directed verdict, or for a new trial

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:

  • a copy of the judgment or order being appealed
  • a copy of the certificate of the court reporter that a transcript has been requested; a statement by an attorney that the transcript has been requested; or a statement that there is no record to transcribe
  • proof that a copy of the Claim of Appeal was served on all parties
  • a copy of any bond the appellant has filed
  • a copy of the register of actions of the lower court (the docket, which is a list of events that occurred in the trial court)
  • a jurisdictional checklist (a list of documents required for appeal)

Within the 42 days that the defendant has to appeal, he or she must also file certain documents with the trial court:

  • a document showing that any fee required by law was paid
  • a document showing that any appeal bond required by law was secured
  • a statement by the court reporter that the transcript has been ordered and paid for

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:

  • 5 copies of an Application for Leave to Appeal, which must contain:
    • the date and nature of the judgment or order appealed from
    • the allegations of error(s) that occurred in the trial court
    • the relief sought (what the defendant wants the Court of Appeals to do)
    • a concise argument of the defendant’s position on each allegation of error
  • 5 copies of the judgment or order being appealed
  • 5 copies of the register of action in the trial court (the docket)
  • 5 copies of the opinion or findings of the lower court
  • the transcript of the proceedings
  • proof of service of the Application on all parties
  • the fee for applying for leave to appeal

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:

  • a title page that includes a request for oral argument and whether the appeal includes an argument that a provision of the constitution or a statute is invalid
  • a table of contents
  • an index of authorities (case law cited in the brief)
  • a detailed statement of how the Court of Appeals has jurisdiction over the matter
  • a statement of the question(s) involved in the appeal, phrased to elicit a “Yes” or “No” answer
  • a chronological and concise statement of facts with specific page references to the transcript, pleading, or other document filed in the case
  • the legal argument supporting the defendant’s position
  • the distinct order the defendant wants the Court of Appeals to issue
  • at the defendant’s discretion, an argument of why the defendant is entitled to oral argument

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.

  1. Appellate Procedure in the Court of Appeals
  2. 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:

  • entry of the judgment, order, or decision appealed,
  • entry of an order denying a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the judgment, order, or decision, if the motion was filed within the initial 21-day period or such longer time as allowed by the court, or
  • entry of an order granting or denying a motion to appoint appellate counsel, if the motion was filed within 21 days of the entry of judgment.

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:

  • a copy of the judgment, order, or decision appealed
  • a copy of the certificate of the court reporter or recorder or other statement that the transcript has been ordered
  • if the appellant has filed a bond, a true copy of the bond
  • proof that money, property, or documents have been delivered or deposited as required by law
  • a copy of the register of actions (the court docket, which describes the actions that occurred in the cases)
  • proof that the appeal fee of the trial court was tendered
  • proof that a copy of the claim of appeal and other documents were served on all parties and the trial court

2.3. Contents of Application for Leave to Appeal

An Application for Leave to Appeal must include the following:

  • a statement of the date and nature of the judgment, order, or decision the defendant wishes to appeal
  • a concise statement of the errors the defendant claims the trial court committed as well as the relief requested
  • a concise argument in support of the defendant’s position on each issue

As with a claim of appeal, documents that must be filed with an Application include:

  • a copy of the judgment, order, or decision appealed and the opinion or findings of the trial court
  • copy of the register of actions (the docket)
  • the portion of the transcript of the proceeding (not the entire transcript) that demonstrates the error that defendant claims was committed, e.g., an evidentiary hearing, the charge to the jury, the plea of guilty or nolo contendere, a sentencing proceeding, or an objection or lack of objection and the attorney’s argument
  • proof that a copy of the application was served on all parties and that a notice of filing the Application was filed with the trial court
  • the circuit court’s appeal fee

In the circuit court, a defendant does not have the opportunity for 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.