Category: Criminal Appeals

What is Jurisdiction?

Posted by Chelsey Bradley - September 20, 2017 - Appeals, Civil Appeals, Criminal Appeals

A particular court’s jurisdiction refers to what types of cases it is authorized to hear, or the scope of its power. A court of general jurisdiction is a court that can hear any type of case that may arise within its assigned geographic location, such as civil, criminal, or family.

Most state court systems divide jurisdiction between various courts. For example, a new case in the state courts of Colorado would be filed in a trial level court. Which trial level court depends on the type of case being filed: municipal court for municipal code violations, small claims courts for civil disputes valuing $7,500 or less, county courts for state law matters, civil disputes above the small claims limit, traffic offenses, and misdemeanor criminal offenses, and state district courts for felony offenses, civil matters exceeding the jurisdiction of county courts, and other specified matters.

Importantly, each of these courts have their own set of rules, deadlines, and procedures. For example, civil cases in the county courts are governed by the Colorado Rules of County Court Civil Procedure, whereas criminal cases in the county courts are governed by Colorado Rule of Criminal Procedure. Failure to adhere to the correct rules may result in dismissal of your case.

Most adverse decisions entered within trial level courts may be appealed. The court that has jurisdiction over a particular appeal is determined by the court that entered the final order at the trial level. The district court hears most appeals from the municipal courts and county courts (civil and criminal). Appeals from the district court are within the jurisdiction of the Colorado Court of Appeals. Finally, an adverse decision from the court of appeals may be appealed to the Colorado Supreme Court.

If you file your case in the incorrect court, the court will dismiss the matter for lack of jurisdiction – regardless of the merits of your claim.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

How to Appeal to the Tenth Circuit

Posted by Chelsey Bradley - September 6, 2017 - Appeals, Civil Appeals, Criminal Appeals, Federal Appeals

The United States Court of Appeals for the Tenth Circuit is the federal appellate court with jurisdiction over the federal districts of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. In almost all cases, a would-be appellant cannot initiate a case in this court until he has received a final judgment within the district court. Through the ensuing appeal, the appellant can argue the district court erred in any order it issued prior to entry of final judgment.

Appeals before the Tenth Circuit are governed by the Federal Rules of Appellate Procedure (“Fed. R. App. P.”), which can be found here. These rules require the appellant begin by filing a notice of appeal that complies with Fed. R. App. P. 3 in terms of content, and Fed. R. App. P. 4 in terms of timeliness. As with an appeal before any court, it is vital that appellants adhere to the deadline to file a notice of appeal.

When filing the notice of appeal, the appellant must also pay the full appellate filing and docketing fee (currently $505) to the district court. Additionally, if a transcript is required for the appeal, appellant must request preparation of this transcript by filing a request with the district court.

Once the district court has determined that the record is complete, the court of appeals will set a deadline for filing all briefs. This deadline may be extended via motion, however these motions are disfavored. If you anticipate needing additional time, it is best to file a motion for extension at least five days prior to expiration of a deadline.

Appellant’s opening brief should comply with requirements in both the Federal Rules of Appellate Procedure as well as the 10th Circuit Local Rules. These requirements govern the format, content, length, and service requirements of the opening brief. The appellant’s opening brief will be followed by the appellee’s answer brief, and appellant’s optional reply brief.

If your case is scheduled for oral argument, you will be notified of this decision approximately two months ahead of your scheduled argument date. Litigants are generally permitted 15 minutes of argument, each. Following oral argument (if scheduled) or submission on briefs (if no argument is scheduled), the court will issue a written decision. There is no timetable for determining how long a decision may take.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today.

How Do I Appeal a Colorado District Court Case?

Posted by Chelsey Bradley - August 23, 2017 - Appeals, Civil Appeals, Criminal Appeals

In most cases, a loss in a Colorado District Court case may be appealed directly to the Colorado Court of Appeals. In order to preserve the opportunity to pursue an appeal, however, a litigant must pay careful attention to the Colorado Appellate Rules (“CAR”) and the deadlines contained therein.

The first step is filing and serving a notice of appeal. This document must contain all information required by either CAR 3(d) (civil cases), or CAR 3(g) (criminal cases). To file, the litigant must (1) serve the original on the court of appeals, and (2) provide a copy to the trial court and all parties. The deadline for completing these actions is generally 49 days following entry of the order appealed from.

The filing fee for a notice of appeal is currently $223. You may additionally be required to pay an appellate bond of $250 to the district court – the clerk can advise whether this fee is applicable to your case. If you cannot pay these fees, you may complete and file Form JDF 205, which can be downloaded from the Colorado Judicial Branch’s Web page, here, to request a waiver.

Within 14 days after filing the notice of appeal, you must file and serve the designation of record on appeal. As with the notice of appeal, this document must be filed with both the district court and the court of appeals. At this point in the appeal, it is also important to ask the clerk how to begin ordering necessary transcripts.

Within 13 weeks of filing the designation of record on appeal, the district court will send the case record to the court of appeals. This event begins the clock on your deadline to file your opening brief: 42 days after the record is filed. If you chose to draft appellate documents yourself, pay attention to the court’s strict formatting rules contained in CAR 32, as well as content requirements contained in CAR 28.

In your opening brief, you must explain how the district court erred, and why the court of appeals should address the error. Importantly, an appeal must be based on the record and cannot incorporate any new information. The opposing party will have 35 days from service of your opening brief to file an answer brief, then you may choose to file and serve a reply brief within 21 days of service of the answer. The court will likely decide your case without a hearing and issue a written decision.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

How Do I Appeal a County Court Judgment in a Criminal Action?

Posted by Chelsey Bradley - July 26, 2017 - Appeals, Criminal Appeals

As a criminal defendant in a county court case, you have the option to appeal an adverse order to the district court of the same county. This type of appeal is governed by Colorado Rule of Criminal Procedure 37, and has different rules and deadlines than a traditional appeal to the Colorado Court of Appeals.

To begin the appeal, you must file and serve the following two documents within 35 days of entry of the adverse decision in the county court:

  • Notice of Appeal: One original to the county court, one original to the district court, and one copy for the district attorney; and
  • Notice of Record & Designation of Record: One original to the county court, one original to the district court, and one copy for the district attorney.

For self-represented litigants, a fill-in-the-blank Notice of Appeal and Designation of Record on Appeal can be downloaded in PDF or Word form from the Colorado Judicial Branch’s Web page.

At the time of filing these documents, you will also be responsible for paying various fees. These fees include a filing fee of $70, and may also include an appeal bond (price varies), a fee for transcripts (price varies), and a fee for preparation of the record on appeal (price varies). The clerk of court will assist you in determining what fees you are responsible for paying.

Once you have timely filed all necessary documents and paid all necessary fees, the county court will prepare the court record within 42 days. Your appellate brief must be filed with the district court and served on the district attorney within 21 days of the court’s filing of the record on appeal. The district attorney will have 21 days following receipt of your brief to file an answer, then you may submit a reply brief within 14 days of receipt of the answer.

After briefs have been filed, the district court will decide your appeal without a hearing, and mail a written ruling to all parties.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today.

A Deadline Expired in my Colorado Appeal, What Can I Do?

Posted by Chelsey Bradley - July 12, 2017 - Appeals, Civil Appeals, Criminal Appeals

In any appeal, it is vital to pay attention to all deadlines. In a worst-case scenario, a missed deadline can be fatal to an appeal. However, the Colorado Appellate Rules allow a litigant to request an extension of a missed deadline in certain, limited instances. Courts are often loathe to grant such requests, however, so litigants should use these rules as a last resort, rather than as a matter of course.

Colorado Appellate Rule (“CAR”) 26(b) governs enlargement of time for any deadline in an appeal before the Colorado Court of Appeals. This rule provides that the court of appeals may, “for good cause shown,” permit an act to be done after the corresponding deadline has expired.

So how can you show “good cause?” CAR 26(b) does not explicitly define this term. However, Colorado case law considering motions for extension under CAR 26(b) have explained that, in order to show “good cause,” a litigant must establish that his failure to meet the appropriate deadline was the result of “excusable neglect.” Excusable neglect exists where surrounding circumstances would cause a similarly situated, reasonably prudent person to overlook the deadline at issue. The standard is very high, and can not be based on simply needing more time to consider your options.

Any request under CAR 26(b) should be made as soon as a litigant realizes he missed a deadline, and should list all reasons why the deadline was missed. The deciding court has broad discretion to determine whether to grant it.

By its terms, CAR 26(b) explicitly excludes the deadline to file a notice of appeal in a civil case: meaning this deadline is not extendable.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today.

What Materials Do Appellate Attorneys Rely On?

Posted by Chelsey Bradley - January 20, 2016 - Appeals, Civil Appeals, Criminal Appeals, Practice

Whether you privately retain an appellate attorney or are appointed one by the court, one of the first things your appellate attorney will request is the entire case file. Many people are surprised to find that it can cost hundreds of dollars to obtain all documents in a case file. This often prompts individuals to wonder, what does an appellate attorney really need? In short, the answer is usually everything.

Appellate attorneys review cases to determine whether there are grounds for appeal – such as errors made by an attorney, the judge, or the jury – from which to request post-conviction relief. In order to find every potential issue, the attorney must review the entire record. This includes:

  • The full court record, including all pleadings, minutes, and orders,
  • The full trial attorney file, including discovery, notes, correspondence, and documentation related to past convictions (if any), and
  • Transcripts of every hearing that was recorded, such as pretrial, plea, sentencing, and trial hearings.

Each of these items carry their own significance. For example, pleadings contained in the court file reveal what issues existed at the trial level, and how they were resolved. Additionally, if there was a trial, the trial transcripts reveal important details such as what objections were made and how they were handled.

These materials are vital to an appeal because appeals are based completely on the record. Every fact within an appeal must have a corresponding citation to a document in the record. Except in limited circumstances, appellate courts will not consider new witnesses or new evidence.

Additionally, appellate attorneys often discuss the case with the trial level attorney, as well. These conversations are important because the trial level attorney will likely already have ideas as to what issues there may be for appeal.

Perhaps most importantly, appellate attorneys rely on conversations with you, the client. Conversations with the client inform the attorney of what the goal of appellate representation should be, and provide important insight and details on the case.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

 

But What do I Win? Remedies on Appeal in Criminal Cases

Posted by Chelsey Bradley - December 22, 2015 - Appeals, Civil Appeals, Criminal Appeals, Practice, Uncategorized

In the majority of criminal cases, a successful appeal or post-conviction motion is not the end of a criminal case. In fact, most post-conviction motions and appeals request specific relief that prolongs the case further, such as a new trial, a new sentencing hearing, or the withdrawal of a plea and the opportunity to go to trial. Following is a discussion of some potential outcomes of a successful post-conviction motion or appeal.

New Trial

If the reviewing court orders a new trial, the defendant is put in the same position he was in prior to the start of the original trial. The State may attempt to negotiate a plea bargain to avoid a second trial, however it is not required to do so. When requesting a new trial, it is important for the defendant to consider that vacated charges will be reinstated. Further, there is a possibility that he will receive the same convictions – or more – and/or a harsher sentence (assuming he did not receive a maximum sentence on all charged counts in the initial trial).

Re-Sentencing

If the reviewing court affirms a conviction but finds issue with the sentence, it may vacate the sentence and order re-sentencing. This can happen in a variety of situations, such as where the reviewing court determines that a sentence is unreasonable, the sentencing court considered incorrect information, or where the sentence falls outside of statutory sentencing guidelines. An order for re-sentencing puts the defendant back in the position he was in immediately following the criminal conviction, so the defendant can receive any sentence authorized by law.

Vacating the Plea

Where a defendant is successful in arguing that he should be permitted to withdraw his plea, the reviewing court can order that the plea be vacated. This puts the defendant in the same position he was in prior to accepting the plea. As with an order for a new trial, the State may attempt to negotiate a plea bargain, but is not required to do so. If a new plea bargain is not reached, the case will proceed to trial. As with a new trial or re-sentencing, the defendant can receive any sentence which was authorized by law at the point before the plea was entered.

While these are common remedies after a successful post-conviction motion or appeal, they are not the only remedies available.  To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

My Time For a Criminal Appeal Has Expired, Now What?

Posted by Chelsey Bradley - November 18, 2015 - Appeals, Civil Appeals, Criminal Appeals, Federal Appeals

A defendant who wishes to appeal a criminal conviction must inform the court of his intention by filing a notice of appeal. The notice of appeal sets into motion  deadlines for various other events, leading up to the deadline to file the appellate brief. While this deadline may be extended as necessary (for more information on extending the deadline to file the appellant’s brief, read our post, How Can I Get an Extension of Time to Appeal?), in some cases defendants or their attorneys allow it to lapse.

The good news is there are options through which a defendant can attempt to seek appellate relief after the time for filing an appellate brief has expired. This post discusses three of these options.

Motion to Extend Time to File Post-Conviction Motion or Appeal

Both Wisconsin and Colorado allow defendants to seek a motion to extend the deadline to file an appeal, even after this deadline has expired. In these states, defendants must submit a motion under either Wis. Stat. § 809.82(2)(a) or C.A.R. 26(b), respectively, and the motion must state good cause for the requested extension. The threshold for good cause is higher where the motion is filed after the relevant deadline has expired. The result of a successful motion for extension is the reinstatement of a defendant’s direct appellate rights.

State Collateral Attack

Through a state collateral attack, a defendant can challenge a conviction after the time for a direct appeal has expired. In Wisconsin, collateral attacks are governed under Wis. Stat. §974.06, which provides that a defendant may pursue a collateral attack where he is in “custody” as defined by the statute, and argues that: (1) the sentence violates of the state or federal constitution, (2) the court lacked jurisdiction to impose the sentence, or (3) the sentence exceeds the maximum legal sentence.

In Colorado, collateral attacks are governed under C.R.S. §16-5-402. This statute imposes important deadlines on the filing of a collateral attack, depending on the type of conviction the defendant is attacking:

  • Class 1 felonies: No limit
  • All other felonies: Three years from the date of conviction
  • Misdemeanor offenses: Eighteen months from the date of conviction
  • Petty offenses: Six months from the date of conviction

As with Wisconsin collateral attacks, a Colorado defendant must allege that his conviction is in violation of the state or federal constitution.

Motion for Federal Habeas Corpus

A third option for post-conviction relief following the expiration of a defendant’s direct appeal rights is filing a motion for federal habeas corpus pursuant to 28 U.S.C. § 2254.

28 U.S.C. § 2254(a) requires that a federal habeas corpus petition allege that the defendant is  in custody in violation of the Constitution, laws, or treaties of the United States. Additionally, a defendant may not file a petition for federal habeas relief unless he has either previously exhausted all state remedies available to him, or shows that the state corrective process is either ineffective or non-existent. 28 U.S.C. § 2254(b).

In most cases, it is best to attempt to reinstate your direct appeal rights before pursuing an alternative option. To  speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

 

 

How to File a State Habeas Corpus Petition

Posted by Chelsey Bradley - September 22, 2015 - Appeals, Criminal Appeals

78486578This post considers the process of filing a petition for a writ of habeas corpus in state court. For an overview of federal habeas corpus, review our recent post, “Petitioning for Federal Relief Under 28 U.S.C. § 2254.”

In addition to being able to file a petition for a writ of federal habeas corpus relief, state prisoners also have the option to file a petition for a writ of state habeas corpus relief.  The procedures and process of seeking state habeas corpus are governed by state statues, and vary by state.

There are several requirements that must be met in order to file a petition for state habeas corpus relief:

  1. The petitioner must be incarcerated,
  2. The petitioner must have no other state remedy available to him (either through exhaustion or expiration), and
  3. The petitioner must allege that he is entitled to immediate release.

A petition for a writ of habeas corpus asks the reviewing court to answer one question – is an incarceration legal. A petition for a writ of habeas corpus is not an opportunity for a court to reconsider the guilt or innocence of a prisoner. Rather, a reviewing court will evaluate the procedures used to convict and sentence a prisoner.

Prisoners do not have a constitutional right to the assistance of counsel for state habeas corpus proceedings. However, certain states including Colorado provide prisoners with the right to the assistance of counsel at certain habeas corpus hearings. In Wisconsin, petitioners can file a “Motion for Appointment of Counsel” to request appointed counsel for a habeas corpus proceeding, however there is no guarantee of appointment.

To speak with a knowledgeable attorney about state habeas corpus relief, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is a Writ of Error Coram Nobis?

Posted by Chelsey Bradley - August 27, 2015 - Civil Appeals, Criminal Appeals

Image result for courtEveryone makes mistakes, even judges. If a trial court makes an error related to fact so substantial and critical that the outcome of the case would have been different, a party may seek a writ of error coram nobis. The kind of error which might result in such a writ is if the court made a mistake as to a victim’s age and imposed a conviction and judgment dependent upon that mistake (say, for example, if the court thought the victim was a minor and she was not).

A writ of error coram nobis is an extraordinary remedy of very limited scope. Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d 685 (1980). It is addressed to the trial court, and provides the trial court the opportunity to correct its own record. In Wisconsin, a party seeking a writ of error coram nobis must establish three factors:

(1) that no other remedy is available,

(2) that the factual error he wishes to correct is crucial to the ultimate judgment, and

(3) the factual finding to which the alleged factual error is directed must not have been previously visited or passed on by the trial court.

See State v. Heimermann, 205 Wis. 2d 376, 384, 556 N.W.2d 756 (Ct. App. 1996). The Wisconsin Court of Appeals has interpreted the first factor to mean that people in custody cannot seek a writ of error coram nobis because, if they are, Wis. Stat. § 974.06 provides them a remedy. Id. Additionally, the requirement that the error has not previously been visited precludes most errors because attorneys are quick to bring important errors to the court’s attention through various avenues such as objections and post-conviction motions.

In Colorado, the writ of error coram nobis is perhaps even more rare. The Colorado Supreme Court once described this writ as “ancient . . . almost obsolete.” Hackett v. People, 406 P.2d 331, 158 Colo. 304 (Colo., 1965). The Hackett court explained that litigants should instead seek relief through a motion to set aside judgment.

Due to the limited scope of a writ of error coram nobis, this remedy is extremely rare. In most cases, an alternative post-conviction remedy will better serve a persons needs. To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).