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Question re: Appeal Filed Where Right to Appeal Waived

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August 16, 2016, 09:13
MCDA_jjohnson
Question re: Appeal Filed Where Right to Appeal Waived
I've got two cases right now that came from open pleas with a cap and sentencing hearings. In each case, the defendant was sentenced under the cap *and* waived right to appeal. However, the appellate attorney has filed appeal in both cases. Can I stop these before we get to the brief writing phase or do I just have to argue lack of jurisdiction in the brief? I wanted to try to get a hold of a staff attorney at the 3rd CoA to ask, but I don't know whether that's proper so I'm assuming it's not. Thanks for the help.
August 16, 2016, 14:19
JohnR
File a motion to dismiss the appeal for lack of jurisdiction because he waived appeal. Attach a certified copy of written waiver or cite to same in the clerk's record.
August 17, 2016, 17:32
Martin Peterson
What does the Rule 25.2(d) certification say? It could likely be mentioned in the motion as a basis for dismissal. E.g., Walker v. State , No. 10-16-00275-CR (Tex. App.-Waco 9/21/16). If it is in error, then you may need to rely on Barcenas , 137 S.W.3d at 866.

This message has been edited. Last edited by: Martin Peterson,