If the defendant has missed the deadline by which to appeal, s/he may nonetheless attempt to file a late notice of appeal and restart the appellate process.  When a late notice of appeal is filed, the clerk will mark it “received,” and the defendant can file a petition for a writ of mandamus or habeas corpus, or a motion for relief from default in the court of appeal, which is usually granted in a proper case within a few weeks after filing.  The grounds for initiating an untimely appeal normally involve allegations of ineffective assistance of counsel based on counsel’s failure to inform the defendant about the deadlines by which to appeal, or to advise the defendant about possible grounds on which they may appeal.[272]  In some jurisdictions, such as California, the sentencing court is required to inform the defendant of the right to appeal, and a late appeal may be initiated if the court has failed to discharge this responsibility.[273]  It may also be possible to attack a waiver of the right to appeal on any ground undermining the conclusion it was entered knowingly, intelligently, freely and voluntarily.

 

If the court grants the motion or petition for an untimely appeal, the conviction will be considered “nonfinal” until the appeal is resolved. See § 5.22, supra.

[272] See Roe v. Flores-Ortega, 528 U.S. 470, 480, 145 L.Ed.2d 985, 120 S.Ct. 1029 (2000) (holding that ineffective assistance will be established entitling the defendant to an out-of-time appeal where counsel fails to “consult” with a criminal defendant about the advantages and disadvantages of filing a notice of appeal, and the defendant has expressed any interest in appealing or a rational defendant would have wanted to appeal under the circumstances of the case).

[273] See N. Tooby, California Post-Conviction Relief § 6.18 (2002).

Sixth Circuit

CONVICTION - FINALITY - OUT OF TIME APPEAL - PENDENCY OF REQUEST FOR LATE APPEAL DOES NOT AFFECT FINALITY OF CONVICTION
United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality of a conviction).