Writs and Appeals
There are two kinds of appeals: Direct appeals, and collateral appeals (writs).
If you take your case to trial and are found guilty, you have a right to appeal the judgment. If you plead guilty, in most instances you do not have a right to appeal, but there are some limited exceptions, such as if a suppression motion was denied before you entered your guilty plea. Some motions, such as a motion to dismiss under California Penal Code Section 995, are reviewable only by a writ, and only within a certain time period after the motion is denied.
Misdemeanor cases are appealed to the Superior Court Appellate Department. Felony cases are appealed to the California Court of Appeals.
In the typical appeal, the appellate attorney must first obtain a transcript of the trial, and then certify the transcript to the appellate court.
Once the transcript is certified, the appellate attorney must identify an appealable issue in the case, and then research and prepare an opening brief. Opening briefs typically are lengthy, well researched documents. An opening brief can be anywhere from twenty to one hundred pages in length, and may require hundreds of hours of research.
Once the opening brief is filed, then the prosecution will file its response.
The prosecution’s response will typically occasion the need for further research, and for the appellate attorney to file a reply brief.
Once the case is fully briefed, then the court may schedule oral argument, or it may decide the case without argument.
There are several different kinds of writs, but the most common are the writ of habeas corpus, the writ of mandamus, and the writ of prohibition.
A petition for a writ of habeas corpus can be filed at just about any time during the pendency of a criminal case, or after a direct appeal has been denied. The core requirement of a petition for habeas corpus is that the defendant is in custody and is being held without due process. An appeals court will actually make a more in depth inquiry into certain facets of a case on a habeas petition than it will on a direct appeal, which can make the habeas petition more useful in certain circumstances.
If certain kinds of motions are denied, such as a motion to dismiss under California Penal Code Section 995, then the appropriate remedy is a petition for a writ of mandamus. A writ of mandamus is an order by the appeals court ordering the lower court to do something it should have done, such as grant the motion. There is a strict deadline for filing such a writ, and you cannot wait until the case is over.
The opposite of a writ of mandamus is a writ ofprohibition. Writs of prohibition are rare in criminal cases, and are most often used by an appellate court to prevent a lower court from exceeding its jurisdiction.
Writs of supersedeas are even less common in California. The usual purpose of a writ of supersedeas is to stay execution of a judgment pending appeal. The proper procedure for filing a supersedeas writ would be to first file a motion in the trial court to stay execution of the judgment pending appeal, and then file the petition for the writ once the motion in the trial court is denied.
A writ of coram nobis is an order by an appeals court to a lower court to consider facts not on the trial record which might have changed the outcome of the lower court case if known at the time of trial. Coram nobis is a Latin term meaning the “error before us.”
In deciding whether to grant the writ, courts have used a three-part test: a petitioner must
1. explain her failure to seek relief from judgment earlier,
2. demonstrate continuing collateral consequences from the conviction, and
3. prove that the error is fundamental to the validity of the judgment.
An example of when it might be used includes prosecutorial misconduct hiding exculpatory evidence from the defendant. A writ of coram nobis is issued once the petitioner is no longer in custody. Its legal effect is to vacate the underlying conviction. A petition for a writ of error coram nobis is brought to the court that convicted and sentenced the defendant.
Coram nobis is limited to cases in which a “fundamental error” or “manifest injustice” has been committed. A high burden of proof is required. It cannot be used to reopen and reargue points of law the courts have decided, but only to raise errors of fact that were knowingly withheld by the prosecutor from judges and defendants. A writ of error coram nobis is an extraordinarily rare remedy, known more for its denial than its approval. It is distinguished from a writ of error coram vobis which brings before the court certain mistakes of fact not put in issue or passed upon,such as the death of a party, coverture, infancy, error in process, or mistake of the clerk.
Although the Federal Rules of Civil Procedure expressly abolished the use of coram nobis in civil cases in the United States, see Fed. R. Crim. P. 60(b), the issue of the writ’s availability to correct fundamental errors in criminal cases remained uncertain for many years. In United States v. Morgan, the Supreme Court resolved this question, holding that coram nobis was still available in federal court for criminal cases. See 346 U.S. 502, 512 (1954).