POLSKY LAW OFFICE
Legal Guides & FAQ
Understanding California Criminal Appeals
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Navigating the appeals process in California can be complex. Below are answers to common questions about appellate rights, procedures, and timelines. You can also download a detailed guide to the appellate process by clicking the button below. If your question isn’t answered here, please contact us for personalized assistance.
What if I miss the 60-day deadline to file a notice of appeal?
Missing the deadline usually means losing the right to a direct appeal. However, if the delay was due to extraordinary circumstances or ineffective assistance of counsel, it may be possible to seek relief through a habeas corpus petition or a motion to file a late appeal (rare and difficult). Contact us immediately for evaluation.
Will I have a new trial or hearing?
In California appellate courts, appeals are decided based on the trial record and legal briefs. Oral argument may be requested but is not guaranteed. There is no new trial or introduction of new evidence unless the case is remanded for further proceedings.
Can I raise new evidence on appeal?
Generally, appeals are limited to the existing trial record. New evidence is not considered unless it is presented in a habeas corpus petition or if the court orders a remand for further fact-finding.
How do I apply for appointed counsel for my appeal?
Indigent defendants have the right to appointed appellate counsel if they cannot afford private representation. The court will determine eligibility based on financial status. Our firm specializes in representing indigent clients on appeal and can assist with the appointment process.
What is an appeal in California?
An appeal is a request for a higher court—usually the California Court of Appeal—to review a trial court’s decision for legal errors. It is not a new trial or a re-examination of factual evidence but focuses on whether the law was correctly applied or constitutional rights were violated.
Who can file an appeal in California?
Any defendant convicted in a California criminal trial has the right to appeal. Appeals are typically filed after a final judgment or sentence. If the defendant was found guilty by a plea or jury verdict, the appeal must be filed within 60 days of the sentencing or judgment date (California Rules of Court, rule 8.308).
What is the difference between a direct appeal and a habeas corpus petition?
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Direct Appeal: A challenge to the trial court’s judgment or sentence, focusing on errors during trial or sentencing. Must be filed within 60 days of sentencing in most cases.
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Habeas Corpus Petition: A collateral challenge used to raise issues not addressed on direct appeal, such as ineffective assistance of counsel or newly discovered evidence. Habeas petitions can be filed anytime but require demonstrating extraordinary circumstances.
How long does a criminal appeal take in California?
The timeline varies widely. After filing, the court sets a briefing schedule, which can take several months to complete. After briefs are submitted, the court may take several more months to issue a decision. On average, appeals can take 9 to 18 months or longer, depending on case complexity and court backlog.
Glossary of Appellate Legal Terms
Appeal
A request for a higher court to review a trial court’s decision for legal errors. It is not a new trial but a review based on the existing record.
Appellant
The party that files the appeal, usually the defendant challenging their conviction or sentence.
Respondent
The party opposing the appeal, typically the prosecution or the state.
Notice of Appeal
A formal document filed to start the appellate process, informing the court and opposing party that the appellant intends to challenge the trial court’s decision. In California, it must be filed within 60 days after sentencing.
Record on Appeal
The complete collection of documents, transcripts, and evidence from the trial court used by the appellate court to review the case.
Brief
A written legal argument submitted by both parties outlining their positions. The appellant files the opening brief; the respondent files a respondent's brief; and sometimes the appellant may file a reply to the respondent.
Oral Argument
A scheduled court session where lawyers present their positions verbally to appellate judges and answer the judges’ questions. Not all appeals have oral arguments.
Reversal
When the appellate court overturns the trial court’s decision, finding that an error occurred that affected the outcome.
Remand
When the appellate court sends the case back to the trial court for further proceedings, such as a new trial or resentencing.
Affirmance
When the appellate court agrees with the trial court’s decision and upholds the conviction or sentence.
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Citation
A reference to legal authority, such as statutes or prior court decisions, used to support an argument.
Petition for Rehearing
A formal request asking the appellate court to take another look at its decision because something important might have been overlooked or misunderstood.
Petition for Review
A request for the California Supreme Court to review the appellate court’s decision. The Supreme Court accepts only a small number of cases.
Remittitur
A formal step denoting the end of an appeal, reflecting the final decision of the appellate court, and returning the case to the trial court. Generally, a trial court cannot take any actions on a case while the appeal is pending and regains jurisdiction over a case only after the remittitur is issued.
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Writ of Habeas Corpus
A separate legal petition challenging unlawful detention or imprisonment, often used to raise issues not suitable for direct appeal, like ineffective assistance of counsel or new evidence.