View Full Version : How does the appeals process work?


EricsPrincess81
05-26-2009, 05:29 PM
My husband was recently sentenced to 19 to Life and his public pretender filed an appeal. How long does it take to reach the court and be looked over? Are the state appellate attorneys any good? Any info on the appeals process would be helpful.

Gryphon
05-27-2009, 07:53 PM
The trial attorney would hav efiled a Notive of Appeal, not teh Appeal. That's because a defendant would have to waive any Ineffective Assistance of Counsel claims for the trial attorney to be able to do the appeal.
The notice of appeal, if done correctly and timely, goes to an administrative agency that farms out appeals to appointed atttorneys. They try to match issues with a lawyer's level of experience. Then, unless continuances are granted, there is a time table the new lawyer has to work with.
I usually am contaced by the administrative agency withing just a few weeks of filing a notice of appeal. An attorney is usually appointed within a couple of weeks after that. There is no real time line for FINAL resolution, but it seems like it takes around a year (start to finish) for the Court of Appeal to reder a written opinion if they feel so inclined.
How good appointed appeals lawyers are is wildly variable. Horrible to excellent. Most seem to know what they are supposed to be doing. Some have little to no trial experience, which can be a problem when spotting issues. Since this is an indeterminate sentence, it'll likley be an experienced attorney.
The State Public Defender probably won't do this appeal. They usually only handle Death Penalty cases.

How long does it take to reach the court and be looked over? Are the state appellate attorneys any good? Any info on the appeals process would be helpful.

EricsPrincess81
05-30-2009, 11:07 PM
The trial attorney would hav efiled a Notive of Appeal, not teh Appeal. That's because a defendant would have to waive any Ineffective Assistance of Counsel claims for the trial attorney to be able to do the appeal.
The notice of appeal, if done correctly and timely, goes to an administrative agency that farms out appeals to appointed atttorneys. They try to match issues with a lawyer's level of experience. Then, unless continuances are granted, there is a time table the new lawyer has to work with.
I usually am contaced by the administrative agency withing just a few weeks of filing a notice of appeal. An attorney is usually appointed within a couple of weeks after that. There is no real time line for FINAL resolution, but it seems like it takes around a year (start to finish) for the Court of Appeal to reder a written opinion if they feel so inclined.
How good appointed appeals lawyers are is wildly variable. Horrible to excellent. Most seem to know what they are supposed to be doing. Some have little to no trial experience, which can be a problem when spotting issues. Since this is an indeterminate sentence, it'll likley be an experienced attorney.
The State Public Defender probably won't do this appeal. They usually only handle Death Penalty cases.


Thanks so much for this info! I actually just found out it was forwarded to an appeal agency and the lady said his case will be assigned within the next 3 weeks! I definetely would not want his public defender who "defended" him in the trial to do his appeal!!! She's what got him here in the first place! It was her first trial and she pretty much let the DA run the whole show!!!

Gryphon
05-30-2009, 11:43 PM
If the attorney was a P.D., working in a county P.D. office, it is improbable that a felony would be her 1st jury trial.
PD's start out doing juveniles or misdemeanors, and usually have a ton of trial experience before they'll be handling felonies. A rising star might be doing simple felonies in 2-3 years, but 3-4 years is more common.
Appointed panel attorneys are a different story; and tiny rural counties can sometimes have defense lawyers doing felonies and having minimal experience.
It is extremely unusual that a defense lawyer is the root of a defendant's evil. Typically. the problem was that the available evidence convinced 12 people beyond a reasonable doubt; and it is usual that the defendant's questionable choices leading up to the alleged crime were what placed them in harm's way.

Thanks so much for this info! I actually just found out it was forwarded to an appeal agency and the lady said his case will be assigned within the next 3 weeks! I definetely would not want his public defender who "defended" him in the trial to do his appeal!!! She's what got him here in the first place! It was her first trial and she pretty much let the DA run the whole show!!!

EricsPrincess81
06-01-2009, 11:24 PM
If the attorney was a P.D., working in a county P.D. office, it is improbable that a felony would be her 1st jury trial.
PD's start out doing juveniles or misdemeanors, and usually have a ton of trial experience before they'll be handling felonies. A rising star might be doing simple felonies in 2-3 years, but 3-4 years is more common.
Appointed panel attorneys are a different story; and tiny rural counties can sometimes have defense lawyers doing felonies and having minimal experience.
It is extremely unusual that a defense lawyer is the root of a defendant's evil. Typically. the problem was that the available evidence convinced 12 people beyond a reasonable doubt; and it is usual that the defendant's questionable choices leading up to the alleged crime were what placed them in harm's way.

I totally undestand what you are saying and yes "if you do the crime you need to do the time". However, His pd was about 27 years old and she told me this was her first trial. The judge even questioned her if she was"ready" to handle this case. I believe she was "inaffective" in her defense tactics and obviously the jury sided with the DA. I just want to make clear my husband was sentenced 19 to Life for 2 counts of grand theft...same sentence Phil Spector got for allegedly committing murder....where is the justice in that??? I greatly do appreaciate your insight Gryphon, I just think that if my husband had a paid attorney he would have gotten a sentence to fit his crime.

Gryphon
06-02-2009, 05:33 PM
You haven't been told some sentence information! That sentence does not compute. (Was this a state other than CA?)
In CA, a maximum sentence for Grand Theft PC section 487 is 3 years. 2 Counts maximum is 3 years plus 1/3 the middle term of 2 yrs., or a total maximum sentence of 3 years 8 mos for 2 counts of Grand Theft.
To get to a life sentence for Grand Theft, he needs 2 previous strike convictions; but then each new felony carries 25 to life (so even if 1 count was run concurrent it'd still be in excess of 19 to life). In CA, indeterminate sentences (up to life) result from murder or attempted murder; or is the result of having 2 strike priors.

To argue ineffective assistance of counsel based on tactical decisions is to PROVE that the attorney's choices were crazy. It'll be a steep hill to climb.

I totally undestand what you are saying and yes "if you do the crime you need to do the time". However, His pd was about 27 years old and she told me this was her first trial. The judge even questioned her if she was"ready" to handle this case. I believe she was "inaffective" in her defense tactics and obviously the jury sided with the DA. I just want to make clear my husband was sentenced 19 to Life for 2 counts of grand theft...same sentence Phil Spector got for allegedly committing murder....where is the justice in that??? I greatly do appreaciate your insight Gryphon, I just think that if my husband had a paid attorney he would have gotten a sentence to fit his crime.

nitamac
06-03-2009, 02:45 AM
My sons appeal attorney told us...
The fact a defendent has served a prison term is an aggravated fact.(rule 4.421(b)(3)
Is this true?
We have filed a habeas corpus petition with the Federal courts. Our Attorney wrote me saying... The federal court has issued an order directing the California attorney general to file a response to the hebeas corpus petition that we have filed. can someone tell me if this is standard procedure? I'm very confused by all this. What does this mean?
Our attorney keeps flip flopping on issues to bring up with our appeal and I don't know what isssues should or should not be raised. I just don't know if i should trust his judgement any more. I'm at my wit ends. we have been appealing his case going on 5 years now and I fear we are close to the end and I very worried.
Nitamac

Gryphon
06-04-2009, 12:11 AM
A prior prison term can be an aggravating fact. It can also be evidence of a previous probation failure, which is an aggravating fact.However, if the prior prison term is also a 667.5 1 yr. enhancement, I wonder if this can be argued to be an impermissible dual use of facts?

The CA Rules of Court list aggravating and mitigating sentence factors, so you should take a look. Then, you can use the index in the back of the Mathew Bender series (at any law library) to look for cases on topic for each rule. This is not a way to do comprehensive research, but you'll get a general educatuion on this area of law. While at teh library, ask if they have a felony sentencing benchbook, which is another research shortcut used by (mostly) judges.

My sons appeal attorney told us...
The fact a defendant has served a prison term is an aggravated fact.(rule 4.421(b)(3)
Is this true?
We have filed a habeas corpus petition with the Federal courts. Our Attorney wrote me saying... The federal court has issued an order directing the California attorney general to file a response to the hebeas corpus petition that we have filed. can someone tell me if this is standard procedure? I'm very confused by all this. What does this mean?
Our attorney keeps flip flopping on issues to bring up with our appeal and I don't know what isssues should or should not be raised. I just don't know if i should trust his judgement any more. I'm at my wit ends. we have been appealing his case going on 5 years now and I fear we are close to the end and I very worried.
Nitamac

nitamac
06-04-2009, 07:00 PM
A prior prison term can be an aggravating fact. It can also be evidence of a previous probation failure, which is an aggravating fact.However, if the prior prison term is also a 667.5 1 yr. enhancement, I wonder if this can be argued to be an impermissible dual use of facts?

The CA Rules of Court list aggravating and mitigating sentence factors, so you should take a look. Then, you can use the index in the back of the Mathew Bender series (at any law library) to look for cases on topic for each rule. This is not a way to do comprehensive research, but you'll get a general educatuion on this area of law. While at teh library, ask if they have a felony sentencing benchbook, which is another research shortcut used by (mostly) judges.
The Judge striked the strike he had from his prior prison term.

Gryphon
06-04-2009, 07:22 PM
The Judge striked the strike he had from his prior prison term.
That's different than not imposing a 1 year prior prison term enhancement (it it hadn't "washed out"), which might possibly give rise to a "dual use of facts" sentencing argument.

Kdubb
06-11-2009, 04:54 PM
My boyfriend has been sitting in the county jail for 4years on capital murder charges. They did not have any evidence or probable cause to hold him. He just now had his first trial April 2009 they sentenced him to life even though they still have no evidence. They basically went off of he said she said of people who dont even know him. They filed his appeal the day he was sentenced. He was just transfered from county to Middleton then to Hunstville. How long will it take or does it usually take to have you appeal looked at?

Gryphon
06-11-2009, 07:30 PM
Looked at by a court?
I can tell you that the answer ranges from right the heck now to more than a year. In a murder trial, I bet it'll be on the long side (Lots of transcripts to review), but sometimes there's an obvious issue that can get prompt attention.
It usually takes a month or two from the date of sentencing to hear from appointed appeal lawyers. If a lawyer is appointed, the administrative body who handles teh appointments would have contact information.


My boyfriend has been sitting in the county jail for 4years on capital murder charges. They did not have any evidence or probable cause to hold him. He just now had his first trial April 2009 they sentenced him to life even though they still have no evidence. They basically went off of he said she said of people who dont even know him. They filed his appeal the day he was sentenced. He was just transfered from county to Middleton then to Hunstville. How long will it take or does it usually take to have you appeal looked at?

CBwifey
06-11-2009, 08:53 PM
My friend recieved a release date of 2038 for a series of robberies committed in CA. He just filed for an appeal,can you give me any information on where to look to make sure he has everything in order, also some information on the steps we should be taking to insure this appeal goes the best way possible.

nitamac
06-11-2009, 10:11 PM
My friend recieved a release date of 2038 for a series of robberies committed in CA. He just filed for an appeal,can you give me any information on where to look to make sure he has everything in order, also some information on the steps we should be taking to insure this appeal goes the best way possible. I went to the appeal website for california and set up an automatic notification to be sent to my email address. FYI pay close attention to deadline date for filing briefs. I wish your friend the best of luck. He will need someone out here to help him communicate with his attorney.