Post-Conviction Relief for Immigrants

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).