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Expediting an Appeal

 

Appeals can take a considerable amount of time to complete, and the major events in the case are often separated by periods of months in a typical case. However, some cases need to be resolved very quickly, because any relief the Court of Appeal may grant will be of no use to the appellant if the case is not expedited. For example:

  • If the appellant has a short sentence, and all or part of the sentence is unlawful, it will not benefit appellant if he or she serves the sentence before the Court of Appeal decides the case.
  • If an appellant on probation challenges certain conditions that were ordered and the Court of Appeal ultimately agrees with appellant’s arguments, the decision will not benefit appellant if he or she has already completed probation by the time the court issues its decision.
  • If the violation of an improper probation condition results in revocation and commitment to jail or prison while the appeal is pending, the appellant will spend time in custody that should not have been ordered.

Knowing that a typical appeal can take a year or more to resolve, appointed counsel should examine the record in a case as soon as it arrives to determine whether steps should be taken to expedite the case through the appellate process to ensure the client will actually get the benefit of any relief granted. If counsel determines that a case should be expedited through the appellate process, counsel may consider taking one or more of the following steps.

 

  1. If any normal record items are missing, or if the record needs to be augmented, file the necessary motions as soon as possible. For information on completing the record, see CCAP’s article The Appellate Record Checklist.
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  3. If possible, avoid requesting extensions of time to file the briefs in the case. Even in a typical appeal, a second extension of time request should be an exception. Appointed counsel should consider his or her current case load, deadlines, and other commitments before accepting a new case that may need to be expedited. For additional information on extension of time requests in the Third District and Fifth District, see CCAP’s article on extension of time requests.
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  5. File a motion for calendar preference/expedited review of the case. California Rules of Court, rule 8.240 allows a party to seek calendar preference in the Court of Appeal. The “party seeking calendar preference must promptly serve and file a motion for preference in the reviewing court.” (Cal. Rules of Court, rule 8.240.) “[T]he rule requires the motion to be filed ‘promptly,’ i.e., as soon as the ground for preference arises.” (Ibid., Advisory Committee Comment.) For purposes of this rule, “‘calendar preference’ means an expedited appeal schedule, which may include expedited briefing and preference in setting the date of oral argument.” (Ibid.) Filing a motion for calendar preference will alert the Court of Appeal regarding the time-sensitive nature of the case and counsel is strongly encouraged to file this motion when he or she determines the case requires expedited review in the Court of Appeal. A sample calendar preference/expedited review motion is available on CCAP’s Motion Samples Book webpage under "C."
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  7. If a case involves issues that may be resolved quickly in the trial court, it may be appropriate to request a stay of the appeal for the purpose of remanding the case to the trial court for limited purposes. Once a notice of appeal is filed, jurisdiction vests in the appellate court until the appeal is decided on the merits and a remittitur issues (with limited exceptions). But there may be situations where a person with a pending appeal wishes to seek relief under a new law immediately in the trial court instead of waiting for the direct appeal to conclude. Recently, courts have recognized that an appellant may seek to stay his or her pending appeal to pursue relief under new laws (Proposition 47 and Senate Bill No. 1437) in the trial court. (See People v. Awad (2015) 238 Cal.App.4th 215, a procedure approved in People v. Gentile (2020) 10 Cal.5th 830, 858.) In some cases, if the appellant wins relief in the trial court, the appeal may be fully or partially moot. Appointed counsel should consider whether it would be appropriate to seek to stay the appeal in order to pursue relief in the trial court (note that this may require an expansion of counsel’s appointment if counsel is planning to do the work in the trial court). This will require counsel to make strategic decisions about the best course of action for pursuing relief based on the circumstances of appellant’s case. A sample motion seeking a stay and limited remand (an Awad motion) is available on CCAP’s Motion Samples Book webpage under "S" (Stay Appeal (Awad Motion).
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  9. After the opening brief is filed, consider contacting the Deputy Attorney General assigned to the case about steps that could be taken in conjunction with the Deputy Attorney General to expedite the appeal. You may consider contacting the Deputy Attorney General assigned to the case to alert him or her about the time-sensitive nature of the appeal and see if he or she is planning to concede any of the issues. The Deputy Attorney General may be willing to do one or more of the following:
    • Stipulate to (or join) a motion for calendar preference/expedited review.
    • Stipulate to the immediate issuance of the remittitur following the court’s decision in the case. California Rules of Court, rule 8.272(c)(1) provides that the court may direct the immediate issuance of a remittitur upon stipulation of the parties. A sample motion for the immediate issuance of the remittitur is available on CCAP’s Motion Samples Book webpage under "E" (Early Remittitur, Stipulation for Issuance of).
    • An example of a stipulation the Attorney General entered with appellate counsel is available on CCAP’s website here (PDF).
  10. If appropriate, consider seeking appellant’s release on bail or own recognizance. For example, there may be no reasonable dispute that a portion of the imposed sentence was unlawful, but if appellant is required to await the outcome of all of the other issues in the case, he or she may remain in custody much longer than required under the lawful portion of the sentence. A sample motion for bail on appeal is available on CCAP’s Motion Samples Book webpage under "B."

 

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