When a defendant has pleaded guilty and waived appeal and the court follows the recommended plea bargain, when can the court grant permission to appeal? Whenever it wants? Or has the court sort of tied it's own hands by accepting the plea bargain and determining on the record that the defendant's plea and waiver of appeal is voluntary? I've been looking for case law, but have not found any on when permission to appeal can be granted. (Needless to say, I have a very strange case.)
I've never seen anything discussing restrictions on the court's ability to grant permission to appeal. If you are trying to prevent an appeal, make a waiver of appeal a condition of your plea bargain agreement. Then, the trial court's permission should be irrelevant--the court of appeals should dismiss the appeal. Of course, it sounds like that can only help you in future cases.
The CCA would probably frown on restrictions on the judge's ability to grant permission in light of the things they said in Young regarding open plea cases.
Are they are trying to use "permission" to get around preservation?
The waiver of appeal was part of the plea bargain. And it wasn't an open plea, it was a negotiated plea. But the defendant is now trying to file a motion for new trial and BEFORE the judge has even denied her motion for new trial, she's trying to get the court to grant permission to appeal. She's trying to get an appeal bond. I say they're putting the cart before the horse --the court hasn't even denied her motion for new trial yet, so there's nothing to appeal, plus, the defendant has specifically waived appeal. This would seem like a no-brainer, except for the fact that we currently seem to be living in a parallel universe.
Does Blanco trump App.R. 25.2? I say that even though the rule states "appeal is perfected by timely filing a notice of appeal" the rule does not grant jurisdiction, though it's clear the failure to comply with the rule does affect jurisdiction. But, the cases speaking about the validity and effect of the waiver have an interesting twist: "A knowing and intelligent waiver of the right to appeal is binding on the defendant and prevents him from appealing any issue in the cause without the consent of the court.", Turner, 956 S.W.2d at 790. Even Cooper seems to say you can appeal most anything if the trial judge grants permission (including involuntariness of the plea). So what limits the judge's ability to create appellate work for the prosecutor? My guess is only common sense and good judgment. Certainly, just because the defendant wants to file a notice of appeal does not mean the judge should sign a permission slip or repeal the waiver. If the judge denies a motion for new trial why would she grant the right to appeal? If the appeal notice is filed without compliance with 25.2(b)(3)(C) its no good, and I would certainly argue the court lacks authority under art. 44.04 to set bail under those circumstances, though subsection (c) of that statute is far from a model of clarity. If the appeal is subject to dismissal for want of jurisdiction is it a "pending appeal"? But see, Reyna, 993 S.W.2d at 144-5 stating that a notice invokes the jurisdiction of the court despite a waiver of appeal and compare Price, 67 S.W.3d at 513 stating "Appellant knowingly and intelligently waived his right to appeal . . . as a result his notice of appeal could not effectively initiate the appellate process." Clearly, "until an appeal has been taken, the trial court is not authorized to permit the accused to enter into a recognizance on appeal." Jaynes, 296 S.W.2d at 936. Let me know how you come out, I'm very interested in getting some revisions to 44.04.
[This message was edited by Martin Peterson on 04-09-02 at .]
Sounds like SNAFU.
Is the court inclined to grant permission? If so, maybe you should just object on the basis of the waiver and then go to the COA and move for dismissal based upon the waiver. If the trial court grants an appeal bond, get conditions that will keep the defendant from fleeing. Once the appeal gets dismissed, no more bond.
In other words, I don't think the waiver can legally keep the court from granting permission to appeal. But, I think the court of appeals will uphold the waiver, especially if you object to the grant of permission, i.e. you don't look like you waived the waiver.
As a practical matter, most trial courts learn to "just say no" to monkey business like this so that they don't get inundated with such requests. The best argument may be, "Gee whiz, judge, if you do this then everyone will want to undo their deal . . ."
Or, if the trial court has "unwaived" the appeal, then can't we force specific performance through mandamus? After all, the court has changed our bargain . . . Anyway, weird situation.
[This message was edited by John Rolater on 04-08-02 at .]
Apparently at least the issue of whether the intermediate courts have jurisdiction where a waiver was filed is going to be answered in Woods, No. 01-2365, granting review of 59 S.W.3d 833. Looks like maybe your case will have to answer what happens if the court grants permission to appeal despite a waiver. If the court grants both permission and an appeal bond, then it does seem mandamus would lie (assuming the court of appeals has no jurisdiction when a notice is filed after a waiver, despite permission). At least that would be a very quick way of getting the issue before the court. I guess the waiver form needs to include "I also waive any right I may have to request the court to grant permission for me to appeal."
Jane: Please give me a call on Monday. Work # 915-336-3322. We had a similar issue that I think may help you.
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