Appeal procedures vary from state to state.  In California, for example, a notice of appeal from a felony conviction must be filed within 60 days after the judgment.[266]  The time limit is jurisdictional, and no appeal will generally be possible unless the notice of appeal is filed on time.[267]  Concerning the filing of a late notice of appeal, see § 5.67, infra.  If the appeal follows a plea of guilty or no contest, the notice of appeal must contain a statement of grounds of appeal, and the defendant must obtain a certificate of probable cause from the trial court.[268]

 

            A notice of appeal from a misdemeanor judgment must be filed within 30 calendar days after the judgment.[269]

 

            CAVEAT:  The rules of court should be carefully and continuously consulted in misdemeanor appeals, as they contain many deadlines with the consequence of possible dismissal of the appeal if counsel fails to comply.[270]

 

            The pertinent portions of the court file are compiled into a clerk’s transcript on appeal, and a reporter’s transcript or settled statement (in some misdemeanor cases) is prepared from the oral proceedings in the trial court.  Counsel reviews the transcripts, researches all arguable issues, and files an appellant’s opening brief arguing to the appellate court why the conviction should be reversed or other relief should be granted.  The prosecution files a respondent’s brief, and appellant files appellant’s reply brief.  The court sets the case for oral argument, and issues its decision.  The decision may affirm the conviction, in whole or in part, or reverse the conviction and remand the case to the trial court for further proceedings.[271]

 

[266] Cal. Rules of Court, Rule 31(a).

[267] An order denying a motion to recall the sentence, filed within 120 days of sentence pursuant to California Penal Code § 1170(d), is not appealable and does not extend the time to file the notice of appeal within 60 days of the original judgment.  People v. Pritchett, 20 Cal.App.4th 190, 24 Cal.Rptr.2d 391 (1993).  See Chapter 8, infra.

[268] California Penal Code § 1237.5, effective for notices of appeal filed on and after January 1, 1992.

[269] California Rules of Court 182(a).

[270] California Rules of Court 181‑191.

[271] See generally Appeals and Writs in Criminal Cases (2d ed. 2000); California Criminal Law: Procedure and Practice, Chap. 41 (misdemeanor appeals), Chap. 42 (felony appeals) (5th ed. 2000); J. Smith, M. Snedeker, S. Fama, The California State Prisoner’s Handbook 422 ff. (2d ed. 1990).

Fourth Circuit

POST-CON RELIEF - APPEAL - MOOTNESS - POSSIBILITY THAT CONVICTION MAY TRIGGER COLLATERAL IMMIGRATION CONSEQUENCE OF INADMISSIBILITY IS SUFFICIENT TO PRECLUDE MOOTNESS OF DIRECT CRIMINAL APPEAL
United States v. Madrigal-Valadez, 561 F.3d 370, 373-374 (4th Cir. Apr. 1, 2009) (possible collateral immigration consequence of inadmissibility, as a result of criminal conviction, is sufficient to prevent direct criminal appeal from conviction from becoming moot), citing Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ("[t]he mere possibility that" a conviction may result in collateral consequences "is enough to preserve a criminal case from ending ignominiously in the limbo of mootness. "); cf. Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) (dissenting opinion).

Sixth Circuit

PRACTICE ADVISORY " POST CON RELIEF " APPEAL " GUILTY PLEA MUST SPECIFICALLY PRESERVE APPELLATE RIGHTS AS TO AN ISSUE TO ALLOW APPEAL OF THAT ISSUE AFTER SENTENCE
In United States v. Mendez-Santana, ___ F.3d ___, 2011 WL 1901545 (6th Cir. May 20, 2011), the Sixth Circuit outlined what a defendant must do during plea proceedings to preserve the right to appellate review of legal issues raised before plea: Rule 11(a)(2) places an affirmative duty on the defendant to preserve any issues collateral to the determination of guilt or innocence by specifying them in the plea itself. United States v. Ormsby, 252 F.3d 844, 848 (6th Cir.2001) (quoting United States v. Pickett, 941 F.2d 411, 416 (6th Cir.1991)). To preserve the right to appeal a pre-plea motion under Rule 11(a)(2), we require 1) a conditional guilty plea in writing; 2) that reserves the right to appeal a specified pre-trial motion; and 3) that evidences the government's consent. United States v. Bell, 350 F.3d 534, 535 (6th Cir.2003). These steps are mandatory because a conditional guilty plea represents an exception to the general rule that a guilty plea admits all averments of fact in the indictment, cures all non-jurisdictional defects, waives all defenses, and relieves the prosecution from the duty of proving any facts. United States v. Diaz, 52 F. App'x 810, 811 (6th Cir.2002); Bell, 350 F.3d at 535. Therefore, a criminal defendant must be diligent in protecting his rights and faithful to the procedure dictated by Rule 11(a)(2) in order to preserve non-jurisdictional issues for appeal. Once a defendant enters a voluntary and unconditional guilty plea, our appellate review becomes sharply circumscribed: we are limited to the consideration of jurisdictional issues and the voluntariness of the guilty plea itself. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Bell, 350 F.3d at 535. See also United States v. Lang, 46 F. App'x 816, 817"818 (6th Cir.2002) (holding unconditional guilty plea waived right to raise on appeal a Fourth Amendment search and seizure claim). (Id. at ___.)

POST CON RELIEF " FEDERAL " APPEAL
United States v. Mendez-Santana, ___ F.3d ___, 2011 WL 1901545 (6th Cir. May 20, 2011) (defendant need not object to the F.R.Crim.P. 11(d)(1) error after the court denied his motion to withdraw the plea, or show plain error under United States v. Vonn, 535 U.S. 55, 60, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), or show a reasonable probability that, but for the error, he would not have entered his guilty plea, under United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), since those decisions do not apply here: The defendants in those cases remained silent and did not contemporaneously object when district judges failed to advise them of certain specific constitutional rights during their plea colloquies[,] whereas Mendez"Santana did not remain silent. . . . Mendez"Santana sought enforcement of his absolute right under Rule 11(d)(1) by moving to withdraw his guilty plea. That is sufficient. We will not accept the government's invitation to require a criminal defendant to doubly enforce the Rule 11(d)(1) right by requiring him to object after the district court denies the motion to withdraw.).