Tooby's California Post-Conviction Relief for Immigrants

A notice of appeal from a felony conviction must be filed within 60 days after the judgment.[107]  The time limit is jurisdictional, and no appeal will generally be possible unless the notice of appeal is filed on time.[108]  Concerning the filing of a late notice of appeal, see § 6.21, 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.[109]  Failure to seek a timely certificate of probable cause will bar the court of appeals from hearing the case.[110]  (If the appeal is from the denial of a motion to vacate the judgment, a certificate of probable cause for appeal is probably not required.)[111]

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

[108] An order denying a motion to recall the sentence, filed within 120 days of sentence pursuant to 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 (1993) 20 Cal.App.4th 190, 24 Cal.Rptr.2d 391.  See Chapter 8, infra.

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

[110] People v. Aguilar (2003) 112 Cal.App.4th 111, 4 Cal.Rptr.3d (defendants failed to seek certificates of probable cause to appeal convictions following guilty pleas within 60 days of convictions, as required by Penal Code § 1237.5; constructive filing rule of In re Benoit (1973) 10 Cal.3d 72 did not apply because here trial counsel did not agree to file appeal or certificate of probable cause,  and appellants were not incarcerated. Fact that superior court did issue the certificate belatedly, and attempted to make it "nunc pro tunc" did not cure the defect).

[111] People v. Kraus (1975) 47 Cal.App.3d 568, 121 Cal.Rptr.11; but see People v. Castelan (1995) 32 Cal.App.4th 1185.  If counsel seeks a certificate, just in case one is required, the application must be filed within the same time as the notice of appeal.