August 27, 2009, 08:59LAS
Help -- appeal of guilty verdict?
I had a trial (agg sex assault) in July where the defendant was found guilty by the jury. They hung up on punishment (11-1 prison). Defendant has not yet been sentenced and before it has been set for a new trial on punishment, the defense attorney has filed a Motion for New Trial and Motion in Arrest of Judgment (prematurely since there has been no sentence pronounced?), Notice of Appeal, Trial Court's Certification of Defendant's Right of Appeal to the Jury's Verdict of Guilty, and the Judge has signed the Certification of Defendant's Right of Appeal -- all filed and signed without giving me a chance to adequately respond.
I have looked at CCP 44.02 and TRAP Rules 21-27 annotations and haven't found anything cases allowing an appeal of a guilty verdict prior to sentence being imposed. I'm no appellate whiz .....
1. Can I file a motion to set aside or somehow invalidate the judge's permission to appeal?
2. Is there any helpful caselaw that I've overlooked?
3. Am I understanding Rule 25.2 to say that the defendant can appeal after a judgment (which we don't have -- jury verdict is not the same, right?) or an appealable order (which we don't have)?
Aren't these filings all premature?
August 27, 2009, 09:10JAS
If you can't get the trial court to see reason, as soon as you get notice from the appellate court that it has docketed the case, file a motion to dismiss for want of jurisdiction because no judgment has been entered.
August 30, 2009, 20:24samk
Correct, its not a final judgment yet would be my best guess.