The CCA suggests that, essentially as a matter of course, in order to protect its prospective right of appeal from a signed order the State should file a notice of appeal from an order/ruling granting a motion to suppress evidence before an order is signed. Wachtendorf.

A problem remains, however. The notice of appeal must contain a certificate "that the evidence, confession, or admission is of substantial importance in the case." After the hearing, you still may not know exactly what evidence will be ruled inadmissible, nor may you know the precise basis for the ruling. Would you feel comfortable later with having made a false certificate in a notice of appeal?

I am doubtful that the rules committee can solve the problem. The court will simply remain unable to change the requirement of art. 44.01(d) that the notice deadline runs from the date of entry (with or without notice) and is a hard deadline.

Maybe you can just ask your clerk to be sure to provide notice of "filing," even though they are not required to do so. If that proves impractical, make sure someone from your office checks criminal files on a regular (at least 20 day) basis for orders of interest (including orders granting new trials).

When I have a case where I'm expecting such an order I am daily checking the online records and the court's paper file (we are transitioning from paper to online). In the past I have had orders get signed without my knowledge. I have had more problems, though, with judges who believe that they do not need to sign a written order granting the MTS. Getting them to do FOF/COL has been a problem sometimes--they want us to file NOA first, but we want the FOF to figure out if an appeal is viable.

The issue we had in Wachtendorf was the judge kept the motion on his desk, signed and dated it off the bench after a general oral announcement, never put it in the clerk's file, and said on the record he didn't remember signing anything. Then at a status hearing he "found" the signed order and had it filed with the clerk at that time. Checking the file and the online records here would not have helped.

I really don't think the judge acted maliciously. I think that is just his style of handling his paperwork. This happened before I took over the appellate position and when that position was vacant, so the trial prosecutors didn't have the benefit of appellate focused advice. I get that we can file the notice early but I also worry about the clarity of an oral ruling.

This message has been edited. Last edited by: Prezas,

And judges do not always put the correct dates of signing on an order/judgment. Indeed, sometimes they are signed, but not dated at all. There is no pat solution for "double secret probation"-type orders. Aren't the vagaries of the law fascinating?