Want to appeal a conviction or sentence?
When attempting to appeal a conviction in Colorado, the government’s expectation is for you to hurry up and wait. In a legal context, the appellate court is at a higher level than the trial court. Naturally, many aspects of the process of an appeal are heightened compared to the process of taking a case through trial; the stakes are higher, the penalties for a mistake a higher, and the burden of proof is higher for the party appealing.
To protect your interests, you have to file everything perfectly and before the deadline. Only, once you submit everything, you’ll be sitting around and waiting for about another six months to a year until you can submit a new argument.
The Colorado Rules for Appellate procedure are specific on every detail of everything filed with the court, all the way down to the font type and size on the submission. The penalty for violating a rule is a total forfeiture of your brief, or your right to appeal. Many of the rules have a subtle but powerful catch-all; “at the discretion of the Court of Appeals” means that the rules are the rules…until the Appellate judges don’t want that rule to apply. See our blog Colorado Rules for Appealing a Conviction for more information regarding some of the specific rules for filing an appeal.
What does an appeal look like?
An appeal is mostly written briefs. The briefs are mostly about law, compared to a lower court criminal case where most of the arguments are based on the facts of a case instead of legal nuances. It is an attorney’s job on an appeal to point out all the flaws in the lower court, how the procedure was not correctly followed, and those errors directly lead to an incorrect verdict or sentence. About half of appeals are all written briefs and never are argued in front of judges.
How do Appellate Judges Control The Courtroom if Appeals are Mostly Written?
The area where the court will exercise a considerable amount of discretion in every appeal regards due dates for filings. Colorado Rules for Appellate Procedure (C.A.R.) 26(b) states that “the Appellate Court for good cause shown may upon motion enlarge the time prescribed by these rules…” The key phrase in this rule is “for good cause”. This means that if the Appellate Court believes you deserve an extension they will give it to you, and if they don’t feel like you deserve it, you won’t get it.
There isn’t a clear legal rule for “good cause”, it is entirely subjective to the presiding judges’ opinion.
Designation of Transcripts
The designation of transcripts, a record of all trial court proceedings transcribed into a script form prepared by the clerk of the trial court, is required to be submitted to the Court of Appeals 9 weeks after starting an appeal. In reality, you can expect the designation of transcripts to be completed 3-4 months after the start of an appeal.
An appellate judge will be very sympathetic to a clerk working for them. If the clerk waits until the week it is due to start working on it and realizes it will take a month of diligent work to get completed, then they can just say they need more time to do it correctly and the court will grant them however long they want.
The next document filed in an appeal is the Opening Brief. This is filed by the party appealing. There are 42 days to receive the Record on Appeal, review all the transcripts, develop all arguments, and submit the Opening Brief.
In appeals that contain a lot of filings, hearings, and one or more jury trials can contain thousands of pages to review. If the appealing party cannot review all the documents in time, they may file an extension.
In our experience, good cause usually translates to other hearings or trials happening in those 42 days that would force an attorney’s attention to other cases and not give enough time to review all the documents. The court will normally grant an extension, but rarely for as much time as requested.
In our experience, the court will normally grant half to three-quarters of the amount of time requested. When the appealing party requests an extension of time, the court has been known to say “no more extensions will be granted.” So, if the appealing party needs more time, they had better ask for the moon because they might get some of their requests but rarely all of it, and they probably won’t get another opportunity to ask.
The Answer Brief is filed by the appellee, or non-appealing party, which is 99% of criminal cases is the government. This is where the longest extensions of time are normally seen. The C.A.R. rules state that the Answer is due 35 days after the Opening Brief. On average, one can expect the Answer Brief to be filed around a year after the Opening Brief.
In our experience, an extension of time for the answer brief is grantedbeforea motion requesting an extension of time is even filed. Effectively, this means that the Court of Appeals finds that simply having to write the Answer Brief is good enough cause to grant an extension. Normally, the government will file one to two more extensions of time for the answer brief, only stating that they have other briefs they have to write. They are almost certainly granted without much of a second look.
The final brief is the Reply Brief filed by the party appealing. The rules state the Reply Brief is due 21 days after the answer brief. The record has already been reviewed and arguments identified for the Opening Brief, so counsel has been tasked with counter-arguing the Answer Brief. Even though the amount of work is shortened, 21 days is not very long to perfect the last written argument for an appeal.
A request for an extension may be partially granted for an extremely good cause, although the standard is still the same “good cause”, the standard in practice is heightened because the presiding judge must be persuaded that it is necessary. Having two full jury trials during those 21 days might grant the appealing party another week or two, but there are never any guarantees for the appealing party.
Notice of Intent to Appeal
The only due date that the court of appeals is prohibited from extending, per C.A.R. 26 (b), is the 49 days after a final order due date for filing a Notice of Intent to Appeal.
It’s interesting to note, the government is NOT responsible for filing a Notice of Intent to Appeal in 99% of criminal appeals, only the person attempting to reverse the final judgment. A person cannot be tried for the same crime twice, so if someone is found not guilty during trial, the prosecutor cannot appeal for a new trial as a convicted defendant can. A prosecutor can appeal an acquittal verdict at trial, but it is extremely rare and would have to be based on a procedural issue.
The Notice of Intent to Appeal will be dismissed and the right to an appeal will be taken away if the Notice is turned in a second past the deadline. If you are sentenced to a charge that you want to appeal, you do not have the luxury to waste any time. Start the process, find an attorney, or at least ask the local public defender’s office to see if you qualify.
If you want to hire a private attorney, it is still fine to have the public defender’s office file the Notice of Intent because a private attorney can come in at any point in the litigation, and you will not have lost your right to appeal while shopping for lawyers. Once the deadline for the Notice of Intent to Appeal has passed, there is nothing anyone can do, even the Court of Appeals.
Oral arguments are not a required part of an appeals proceeding. A party may request for an oral argument once the Reply Brief has been filed. It again is up to the Appellate Court’s discretion if they believe oral arguments are necessary for them to understand the issues in the case. Oral arguments are normally set for six months after the Reply Brief has been filed.
The Attorney General’s Office handles all appeals in the State of Colorado, and only handles appeals. About half of all appeals will have an oral argument. Oral arguments are the sole occasion where counsel will appear in front of the appellate judges. Oral arguments last fifteen minutes and all judges will interrupt each party’s argument to ask clarifying questions. This requires the party representatives to think quickly on their feet or else potentially forfeit key aspects of their argument for lack of time.
Oral arguments are one area we feel as though there is an advantage to use against the Attorney General’s Office. As private counsel that deals with trial court cases as well as appellate cases, our office appears in front of judges in courtrooms every day. Every day, we are required to respond quickly and effectively to a judge’s questions while maintaining our overall argument. The Attorney General will sit in their office and work on written work for a majority of their job.
Our experience of arguing on our feet is invaluable in an appeal, where an issue can sound pro-government with a lot of fancy writing but appears much worse than on the written page when the person that wrote it cannot verbally articulate it. Our office requests an oral argument on every appeal.
Anyone filing an appeal of a criminal conviction or modification of sentence can expect the appeal to last 2 and ½ – 3 years after they are sentenced. The rules are strict for an appeal, stricter than a lower court. The Court of Appeals judges can change a lot of the required parts of an appeal to whatever they deem necessary, and it is usually more necessary for the government to get an exception than it is for the appealing party. It is generally a good idea to request an oral argument to force the Attorney General to defend their arguments while on their feet.
Reach out to our office if you are considering appealing a criminal conviction or sentence. We have experience taking cases from the day a client is arrested through an appeal, as well as appealing a case done by another attorney. Any appeal requires an experienced attorney or faces the risk of misfiling, miscalculating, or missing a deadline, and not seeing the benefits of requesting an oral argument. Our office is very familiar with the rules and requirements of taking a case through the appeals process. Please call us at (303)-377-0100, email us, or come into our office at 78 W 11th Avenue, Denver, Colorado 80204 or call us after hours to discuss how we can help you immediately.
- Administrative Law Judge (ALJ)
- Departmental Appeals Board (DAB) Review.
- Federal Court (Judicial) Review.
Depending on the type of case, the overall success rate for appeals is somewhere between 7% and 20%.Which court hears appeals from the Court of Appeal? ›
In most cases, decisions of the Court of Appeal can be appealed to the Supreme Court with leave from either body. When leave to appeal is not sought or granted, decisions of the Court of Appeal are final.How long do you have to appeal a county court decision? ›
The time limit is either: the date set by the judge whose decision you are appealing against, or. if the judge did not set a date, then you have 21 days from the date of the decision that you want to appeal against to send or take your request for permission to appeal to the court.How do you successfully win an appeal? ›
- Hire an Experienced Attorney. The first, and most important, thing you should do when faced with an unsuccessful court case is to contact the right attorney. ...
- Determine your Grounds for Appeal. ...
- Pay Attention to the Details. ...
- Understand the Possible Outcomes.
First, a transcript (written record) of the trial must be prepared by a court reporter. In a capital case (the defendant has been convicted of first degree murder and sentenced to death), the court reporter has 120 days to prepare the transcript.How hard is it to win an appeal? ›
Winning an appeal is very hard. You must prove that the trial court made a legal mistake that caused you harm. The trial court does not have to prove it was right, but you have to prove there was a mistake. So it is very hard to win an appeal.Can you introduce new evidence on appeal? ›
The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal.How long does it take for an appeal to be decided upon? ›
An appellate court may issue its opinion, or decision, in as little as a month or as long as a year or more. The average time period is 6 months, but there is no time limit. Length of time does not indicate what kind of decision the court will reach.Who has the right to appeal? ›
To stress, the right to appeal is statutory and one who seeks to avail of it must comply with the statute or rules. The requirements for perfecting an appeal within the reglementary period specified in the law must be strictly followed as they are considered indispensable interdictions against needless delays.
The court determining an appeal will correct errors by the trial judge and the right of appeal ensures that, as far as possible, courts arrive at correct decisions. The decisions of appellate courts are fully reasoned, widely available and they do not always pull their punches.Can you always appeal a court decision? ›
A popular misconception is that cases are always appealed. Not often does a losing party have an automatic right of appeal. There usually must be a legal basis for the appeal an alleged material error in the trial not just the fact that the losing party didn t like the verdict.How much does appeal cost? ›
The court has an extremely simple fee charging structure based on two basic fees: £235 for permission to appeal and £465 to proceed to a full appeal.What happens after a court of appeals reaches a decision? ›
If the appeal is granted, the case will either be remanded or sent back to the lower court for a new trial, or the trial court will be overruled. The losing party can try to appeal the outcome to the California Supreme Court.What are the grounds of appeal? ›
The grounds of appeal are often described as the first stage of convergence as the scope of the case is limited by the decision under appeal. As the appeal progresses subsequent stages of convergence are reached which further limit the ability to amend a case.Do appeals usually win? ›
Odds of a Successful Appeal
If you're wondering how often appeals are successful, the short answer is “typically, not often.” That doesn't mean you can't win yours with the proper, experienced representation. The appellate court reviews each case from the standpoint of trying to support the trial court's judgment.
In formal rhetoric, this is called ethos, logos, and pathos. No one type is better than the other; usually the most effective arguments - the ones most likely to persuade someone of something - use all three.What are the four outcomes of an appeal? ›
- Affirm the decision of the trial court, in which case the verdict at trial stands.
- Reverse the decision to the trial court, in which case a new trial may be ordered.
- Remand the case to the trial court.
Appeals can be filed to the Supreme court by filing a petition with the court which enacted the decree, upon which the petition would be heard and disposed of within a period of sixty days. Petitions submitted for this purpose must state the grounds of appeal.What are the stages of appeal? ›
Appeal from original decree; Appeal from order; Appeal from appellate decree/second appeal/to High Court; Appeal to the Supreme Court.
Step 4 – The final practical appeal
Otherwise known as “what can I reasonably do” appeal. I have tried this a few times as head of year and it is a very good open question to get a conversation following and could ultimately lead to interventions.
Can I Appeal Multiple Times? Whether or not you will be able to appeal your case more than once depends on a number of factors; most of the time, you can only appeal to the court that is directly above the trial court that issued a decision about your case.What happens if an appeal fails? ›
If you lose your appeal, your original conviction will stay the same. You won't be able to appeal again unless the Criminal Cases Review Commission refers your case back to the Court of Appeal.What are the 4 most common reasons for appeal? ›
- Legal error.
- Juror misconduct.
- Ineffective assistance of counsel.
The Court does not hear evidence or question witnesses. As a court that functions largely as a court of appeal, it considers the record of the evidence heard in the original court that heard the matter. A result of this is that the Court works largely with written arguments presented to it.What documents must accompany notice of appeal? ›
NOTICE OF APPEAL + AFFIDAVIT
The notice of appeal (FORM 1) must be accompanied by an affidavit as stipulated in Regulation 27C (b) of the FICA Regulations, proof of payment of the appeal fee and any relevant documents.
It is any evidence that was not adduced at the trial, [section 23(1)(c) Criminal Appeal Act 1968] and can include witnesses, expert reports, or matters contained in “any document, exhibit or other thing connected with the proceedings”[section 23(1)(a)].How do you get a judge to rule in your favor? ›
- Your arguments must make logical sense. ...
- Know your audience.
- Know your case.
- Know your adversary's case.
- Never overstate your case. ...
- If possible lead with the strongest argument.
- Select the most easily defensible position that favors your case.
- Don't' try to defend the indefensible.
If the appeals process takes a long time, it's because your case must go through several stages. And at each stage after you file, you have to wait behind other cases that have been filed before yours. The first step, which is the fastest, is starting the appeals process.How long does a judge have to rule on a motion? ›
Under T.R. 53.2, if a judge takes a cause tried to the court under advisement and fails to determine any issue of law or fact within ninety (90) days of the submission of all pending matters, the case may be withdrawn from the judge. Ind.
Appealing against a guilty verdict
- there was something unfair about the way their trial took place.
- a mistake was made in their trial.
- the verdict could not be sustained on the evidence.
The right to appeal is a mere statutory privilege, and should be exercised only in the manner prescribed by law.Why do people appeal? ›
An appeal is not another trial but an opportunity for the defendant to try to raise specific errors that might have occurred at trial. A common appeal is that a decision from the judge was incorrect – such as whether to suppress certain evidence or to impose a certain sentence.Are appeals successful? ›
The chances of winning a criminal appeal in California are low (about 20 percent of appeals are successful). But the odds of success are greater if there were errors of law and procedure at trial significant enough to have affected the outcome of the case.What is the primary purpose of an appellate court? ›
The appellate court's task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury.What is the full meaning of appeal? ›
ap·peal ə-ˈpēl. law : a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court. : an application (as to a recognized authority) for corroboration, vindication, or decision. : an earnest plea : entreaty. an appeal for help.What can you do if a judge is unfair? ›
In a matter of any grievance relating to delay in judgement or not a fair judgement or miscarriage of Justice, the petitioner is suggested to go for judicial remedy by making an appeal or any other events before the appropriate Court of Law within the allotted time limit.Are you still guilty if you appeal? ›
There are a few things that can happen if you appeal your case: The court can keep the conviction the way it is ("affirming the conviction"). The judge can remand the case back to the trial court for additional proceedings. The judge can reverse the conviction and remand back to the trial court for a new trial.Can appeal be denied? ›
Generally, the losing party in a lawsuit may appeal their case to a higher court. The higher court then reviews the case for legal errors. If an appeal is granted, the lower court's decision may be reversed in whole or in part. If an appeal is denied, the lower court's decision stands.Who pays the costs of an appeal? ›
The appellate court has power to make a costs order (CPR52. 20(2)(e)). The court's costs discretion is broad (CPR44. 2) and the unsuccessful party will usually pay the successful party's costs, including in any appeal.
Offenders appealing against sentences are eligible for Legal Aid to fund a case and pay for legal advice and representation in court.What happens when you go for appeal? ›
The appeals court will look at the evidence that was presented to the trial court to decide whether some legal error was made. Depending on what the appeals court decides, it can set aside, confirm, or modify the trial court's judgment and could even order a new trial.What percentage of court appeals are successful? ›
Depending on the type of case, the overall success rate for appeals is somewhere between 7% and 20%.Is an appeal decision final? ›
Most appeals are final. The court of appeals decision usually will be the final word in the case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case.Is Court of Appeal decision final? ›
Yes. Filing an appeal stays the enforcement of a trial court judgment. The final judgment or decision of the trial court only becomes final and executory when no motion for reconsideration is filed with the court of origin or no appeal has been filed or perfected or after an appeal duly filed is decided with finality.What are the two basic reasons for an appeal? ›
In almost all cases, the appellate court ONLY looks at two things: Whether a LEGAL mistake was made in the trial court; AND. Whether this mistake changed the final decision (called the "judgment") in the case.On what grounds can a defendant appeal? ›
A defendant may only appeal by way of case stated on the ground that a decision is wrong in law or is in excess of jurisdiction 10 – see the section 'Prosecution rights of appeal' for further guidance on appeals by way of case stated.How long does it take to be approved after appeal? ›
The Independent Tribunal will attempt to finalise appeals within 60-90 days from the date on which the appeal was received. They will inform clients of their decision electronically and of reasons why they came to the decision.What are the grounds of appeal cases? ›
GROUNDS. On the basis of facts of the case and the legal interpretation of various legal provisions. Territorial and pecuniary competency of the court. The parties which are not joined in the original suit, appeal against the decree/judgment of such court can be maintained.What are the three main standards of review on appeal? ›
There are three basic categories of decisions reviewable on appeal, each with its own standard of review: decisions on “questions of law” are “reviewable de novo,” decisions on “questions of fact” are “reviewable for clear error,” and decisions on “matters of discretion” are “reviewable for 'abuse of discretion.
The appeals process is a defining feature of an independent and impartial judiciary. Litigants who are dissatisfied with the outcome at the trial court level can take their case to the appellate level where judges review the record for possible errors.What is the purpose of an appeal? ›
An appeal is when someone who loses a case in a trial court asks a higher court (the appellate court) to review the trial court's decision.What is the most common reason for an appeal? ›
Criminal cases, specifically misdemeanor and felony convictions, are the most common offenses that are taken to appeals courts.How do I check my appeal status? ›
Visit srd.dsd.gov.za. Click on the green bar that says 'click here to lodge an appeal or check appeal status' Enter your ID number. Enter your cell phone number.How long does a Stage 2 appeal take? ›
Overall you can expect to receive a final decision under the appeals procedure within 90 days of the date your Stage Two appeal was accepted.