Trial Attorney Steps for Appeal

TRIAL ATTORNEY INFORMATION: THE 4 STEPS FOR STARTING AN APPEAL

The following four steps explain how trial counsel can assist an indigent criminal defendant, juvenile delinquent, or a party in dependency proceedings with filing a notice of appeal in the trial court and applying for court-appointed counsel in the Third and Fifth District Courts of Appeal.

If you are uncertain which Court of Appeal will hear the appeal, consult the Appellate Districts and Counties Map and our interactive map to determine the correct appellate jurisdiction for the case.

For information on starting an appeal in a misdemeanor or infraction case, see California Rules of Court, rules 8.850-8.854. Misdemeanor and infraction appeals are decided by the appellate division of the superior court. CCAP does not coordinate the appointment of counsel in these cases.

Step 1 of 4:
Trial counsel has a duty to consult with his or her client about an appeal and, if the client wishes to pursue an appeal, to assist the client with filing a notice of appeal. More information about this duty is available on our web site here.

To begin the appeal, file the notice of appeal with the superior court clerk’s office:

TIP: Take the notice of appeal forms with you to sentencing or the dispositional hearing. File the notice of appeal with the superior court clerk.

A helpful article on notices of appeal is available here.

In criminal cases, if the defendant is appealing from a guilty plea, determine whether a certificate of probable cause is needed. “If trial counsel believes that there exist arguably meritorious issues concerning the validity of [a guilty or no contest] plea, counsel has a duty to help with requesting a certificate of probable cause for a defendant who has asked to appeal.” (People v. Hodges (2009) 174 Cal.App.4th 1096, 1106.) A helpful article on certificates of probable cause is available here.

In juvenile delinquency cases, a minor who admits the allegations in a Welfare and Institutions Code section 602 petition does not need to secure a certificate of probable cause to obtain appellate review. (In re Joseph B. (1983) 34 Cal.3d 952.)

Once the notice of appeal for a case is filed in a superior court within the jurisdiction of the Third or Fifth District Court of Appeal, it will be sent to CCAP. CCAP will assist the appellant in obtaining appointed counsel on appeal after we have received all of the paperwork.

IMPORTANT INFORMATION ON NOTICE OF APPEAL DUE DATES: The notice of appeal and any certificate of probable cause must be filed within 60 days after the judgment or order being appealed. (Cal. Rules of Court, rule 8.308(a).) For purposes of calculating this deadline, the first day (the day of the judgment or the order) is excluded and the last day is included. (Code Civ. Proc., § 12.) If the last day falls on a holiday or the weekend, then the due date is extended to and includes the next business day. (See Code Civ. Proc., §§ 10, 12, 12a, 12b, 135; see also Gov. Code, § 6700.) CCAP’s Day and Date Calculator is a helpful tool to use to calculate the due date.

If the client will be filing the notice of appeal instead of trial counsel, counsel should ensure that the client knows the deadline. If the client is incarcerated, he or she will have the benefit of the prison-delivery rule. (See Cal. Rules of Court, rule 8.25(b)(5); In re Jordan (1992) 4 Cal.4th 116.) Under this rule, if the court clerk receives the notice of appeal by mail from an incarcerated inmate after the deadline has passed, it will be deemed timely if “the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document . . . .” (Ibid.)

When an inmate mails a document from prison, in most instances the correctional officer taking the envelope will initial the back and put the date on it. This is the date, not the postmark, that counts for purposes of the prison-delivery rule. Sometimes the correctional officers will not do this and it creates a problem for the inmate. As a result, it is a good practice for trial counsel to tell incarcerated clients to ask the correctional officer who takes the envelope to initial and date the back.

Step 2 of 4:
In addition to filing the notice of appeal, “trial counsel shall also assist the defendant in preparing and submitting a motion for the appointment of counsel and any supporting declaration or affidavit as to the defendant’s financial condition.” (Pen. Code § 1240.1, subd. (b).) Have your client complete the following two forms as soon as possible:

TIP: Take the Application for Appointment of Counsel and the defendant/minor/parent Background Information forms with you to sentencing or the dispositional hearing. Assist those clients who need help to fill out the forms.

Please remind your client that if the Application for Appointment of Counsel form is not returned, or in the alternative, a brief filed on his/her own behalf is not timely received, the Court of Appeal will dismiss the appeal. Therefore, it is imperative that your client return the Application form to CCAP as soon as possible if appointed counsel is desired.

Give your client CCAP’s Change of Address form at the sentencing or dispositional hearing so he or she can notify CCAP of any address change. You may also wish to provide your client with a copy of Understanding Your Appeal (Spanish version), which CCAP sends to every appellant along with the initial group of forms for requesting appointment of counsel.

Step 3 of 4:
Make sure your client sends the completed Application For Appointment of Counsel form and Confidential Background Information From Defendant/Minor form to CCAP:

Central California Appellate Program (CCAP)
2150 River Plaza Dr., Ste. 300
Sacramento, CA 95833

Call us if you have any questions: (916) 441-3792

Step 4 of 4:
Complete the Preliminary Information From Trial Counsel formand return it to CCAP at eservice@capcentral.org as soon as possible.

Want to join the CCAP appointed-counsel panel? Please visit our Join the Panel page.