Once you are convicted at a bench trial (no jury) or a jury trial, you have the right to appeal that conviction. A Notice of Appeal must be filed with the court 30-60 days following the judgment. This timeframe and all the timeframes that govern the appeals process require strict compliance. A final judgment is a sentence, a final conviction or an order granting probation, an insanity commitment, a mentally disordered offender commitment or an addiction commitment.
You may file a “general notice of appeal,” which does not require that you enumerate any specific issues. Other than sentencing and 4th Amendment issues, a guilty plea waives appellate review of issues except those affecting the legality of the plea or the trial court’s jurisdiction. But keep in mind, that the trial court must first issue a certificate of probable cause in order to prevent frivolous appeals.
A certificate of probable cause is a written statement executed under oath or penalty of perjury showing constitutional, jurisdictional or other legal grounds for appeal. This statement and the corresponding certificate of probable cause are only required in adult California appeals–misdemeanor or juvenile court proceedings require this.
Capital cases (cases where the defendant is sentenced to death) are appealed automatically and do not require that the defendant and the defense attorney take any action. As with all appeals from the Superior Court, you must file the required statement within 60 days of the entry of judgment. Within 20 days, the trial court must grant or deny the request. Unless your statement is clearly frivolous and does not comply with applicable law, the court abuses its discretion if it fails to issue a certificate of probable cause.
What if you fail to meet the 60 day deadline for felony cases and 30 days for misdemeanor cases? If that occurs, you must ask the court to grant you relief from your default. There are primarily 2 grounds upon which the court will grant relief from late notices. The trial attorney failed to perform 1 or more duties relating to the appeal and the principle of constructive filing.
The trial attorney must advice the client whether there are meritorious grounds for reversing or modification of the judgment on appeal. Aside from default stemming from ineffective assistance of trial counsel, a defendant may also rely on the trial court’s failure to fulfill its duty. The trial judge must advise the defendant of his/her right to appeal if the defendant went to trial or had a contested probation revocation hearing.
The second is constructing filing. Typically, this theory comes up when an incarcerated prisoner ask the prison or jail to mail his/her notice of appeal to the Superior Court. If you gave notice to the jail/prison custodian within the allocated timeframe, the court will grant relief. This doctrine of constructive filing is not limited solely to the situation where mail is unduly delayed. If a prison official or a government officer misleads you concerning your right to appeal, grounds for relief from default may exist.
A defendant has a right to bail pending an appeal. For a felony offense, this is a discretionary matter and the trial judge decides. Factors such as you are not likely to flee, no danger to society or not appealing in order to delay your case.
Appealing a case that proceeded to trial or a hearing is very complex. Filing all necessary legal documents and appearing in subsequent hearing without an experienced and an effective criminal defense attorney is to your detriment. Critically important is making sure you have adequate legal representation.
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