Anyone working on how to comply with the new requirement that a judge provide advice concerning an appeal? I have drafted this form:Appeal Advice. I would appreciate comments on my form or discussion of the issues. The amendment seems kind of dangerous to me. I certainly think written advice will be preferable to oral.

[This message was edited by Martin Peterson on 07-08-07 at .]

Martin,

When I use your link, I am told the page is unavailable.

JAS

Should have just done it this way to begin with.

ADVICE AS TO RIGHT OF APPEAL

In accordance with Rule 25.2(h) of the Texas Rules of Appellate Procedure, you are provided with the following advice.

Art. 44.02 or art. 42.12 sec. 5(b) or sec. 23(b) of the Code of Criminal Procedure gives you the right to appeal from the adverse order or judgment which I have entered against you today. An appeal asks a higher court to review the legal correctness of my decision. A particular procedure must be followed in order to invoke the jurisdiction of the appellate court. If that procedure is not followed, then your attempt to appeal will not be successful.

Rule 25.2 of the Texas Rules of Appellate Procedure reads as follows:

(b) Perfection of appeal. In a criminal case, appeal is perfected by timely filing a sufficient notice of appeal.

(c) Form and sufficiency of notice.

(1) Notice must be given in writing and filed with the trial court clerk. If the notice of appeal is received in the court of appeals, the clerk of that court shall immediately record on the notice the date that it was received and send the notice to the trial court clerk.

(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order.

Rule 26.2 of the Texas Rules of Appellate Procedure reads as follows:

(a) By the defendant. The notice of appeal must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or

(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.


Rule 26.3 of the Texas Rules of Appellate Procedure reads as follows:

Extension of Time. The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party:

(a) files in the trial court the notice of appeal; and

(b) files in the appellate court a motion complying with Rule 10.5(b).


If you are financially able to do so, you should promptly retain an attorney to assist you in evaluating whether you should pursue an appeal. If an attorney has already been appointed to represent you, that attorney is required by law to continue to advise and represent you until any appeal of right is concluded, but not thereafter. If you cannot retain an attorney, but believe you desire to appeal and want assistance from an attorney, you must provide proof of your indigence in accordance with art. 26.04 (n) and (o) of the Code of Criminal Procedure and an attorney may be appointed to assist you. Because of the deadline for filing a notice of appeal, such proof and request for counsel must not be delayed. If an attorney is appointed upon the determination that you are presently indigent, then you may also request to have the appellate record furnished without charge to you in accordance with Rule 20.2 of the Texas Rules of Appellate Procedure.

Your appeal will be to an intermediate appellate court (generally the Second Court of Appeals which sits in Fort Worth). That court will issue a written opinion in your case. The Texas Court of Criminal Appeals has jurisdiction to review decisions by the court of appeals in criminal cases. Review by that court is discretionary and normally occurs only if a Petition for Discretionary Review (PDR) is timely filed in proper form as provided by Rule 68 of the Texas Rules of Appellate Procedure. Even though you may be indigent, you have no right to appointed counsel to assist you in seeking review of an adverse decision of your case by the court of appeals. Therefore, if you desire to seek review of your case by the Court of Criminal Appeals, you will likely have to prepare and file a PDR on your own (pro se). Furthermore, any PDR must normally be filed with the clerk of the court of appeals within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals. Your appellate attorney should promptly notify you when your case has been decided by the intermediate appellate court. If you receive that notice, then the Court of Criminal Appeals will likely expect you to timely file a PDR and may not grant extensions of time for you to do so.

By providing you with this advice, the court does not mean to suggest that you should appeal from the decision against you. Trial court decisions are rarely reversed or set aside by the appellate courts, particularly because of the provisions of Rules 33 and 44.2 of the Texas Rules of Appellate Procedure. Filing frivolous appeals reduces the time the appellate courts have to devote to legitimate appeals and creates an unnecessary burden on the judicial system and local taxpayers. It is improper for someone to appeal merely to achieve a delay in serving a sentence.

___________________________________
Judge Presiding
235th Judicial District Court

It seems a little . . . long. Longer than the guilty plea admonishments in 26.13.

To me, that is the issue raised. How much advice do you give? What exactly was the court hoping to accomplish with the amendment? I think most judges were already advising that "you have the right to appeal, and you do that by filing a notice of appeal within 30 days." Is that all it would take to comply with the new requirement?

I don't know what triggered the new requirement, but based on all the writs of habeas corpus that are granted for out of time appeals, my guess is the defense bar has been slipping, so that judges are now required to provide the essential advice.

Like John, I find the proposal a little unwieldy, if comprehensive. Maybe a bulleted format could be adopted. Unfortunately, absent a uniform recitation, I suspect we will now see litigation on the form of the trial court's advice.

JAS

Making this up on the fly:

Assumes appeal was not waived as part of a plea bargain or after assessment of punishment.

You may have the right to appeal the judgment of this Court. If you desire to appeal, you must give written notice to the Clerk of this Court within 30 days. The court of appeals for this judicial district can extend that time by 15 days upon proper motion. If you give notice of appeal, have the right to appeal, and you are indigent, the Court will appoint a lawyer to represent you on appeal. If you are not indigent, you must hire a lawyer to represent you on appeal and you will be required to pay for the appellate record.

It is short, notes that not all judgments are appealable (think plea bargain cases), tells how, gives the time frame, says you can get a lawyer if indigent, and have to hire one and pay for the record if not.

The new certification form will have the following statement: "I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure." Therefore, I am guessing that something about that must be included in the court's advice?

Otherwise, JohnR, your language, except the "extend by 15 days" seems sufficient. JAS, the rule does not seem to provide any penalty or consequence for bad advice. Did the CCA leave this so ambiguous just to have widely varying local practice? I am sure the court is tired of granting out-of-time appeals and PDRs. But, relying on the trial judge to give advice may not be the solution.

I am still worried that in giving advice about an appeal one should somehow also temper the appearance that an appeal be taken. Of course, I recently had to answer a writ where the trial attorney advised his client no appeal should be taken (for valid reasons). So, I guess it is better to get it over with up front. They seem pretty automatic anyway.

The addition of the PDR language seems straightforward. What suggestion do you have as to the 15 day language? If we don't include that, aren't we giving an incomplete admonishment? Do we need to specify the primary court of appeals?

After further review (think football game), I believe the reference to extensions of time is ok. Glad I prompted you to draft a workable (succint) solution. Will this type of advice change anything? Who is going to pay for the certified letter to the guy whose conviction has just been affirmed? Sounds like an unfunded mandate to me. Can courts issue those? Has any attorney gotten in trouble for not notifying their client in time? Maybe someone ought to look in that direction.

So:

You may have the right to appeal the judgment of this Court. If you desire to appeal, you must give written notice to the Clerk of this Court within 30 days. The court of appeals for this judicial district can extend that time by 15 days upon proper motion. If you give notice of appeal, have the right to appeal, and you are indigent, the Court will appoint a lawyer to represent you on appeal. If you are not indigent, you must hire a lawyer to represent you on appeal and you will be required to pay for the appellate record. If your appeal is unsuccessful, you have the right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.

I thought about inserting "to the Court of Criminal Appeals" after "discretionary review," but then I think you might have to add another sentence. "Any petition for discretionary review must be filed with the court of appeals that decided your appeal."

What about extended time to file notice of appeal where a MNT is filed? Whoever thinks this stuff up should be forced to write the admonishment. Maybe take out the 30 and 15 day references and just say "within the time specified by the Texas Rules of Appellate Procedure."??

I think you are on the right track, John. To be consistent, though, do you think you should exclude mention of any rule or refer to all applicable rules? My preference is the former--for the sake of brevity and to avoid confusion. Just a thought, but if the CCA had meant to include MNTs, it should have required a separate admonishment.

JAS

So:

You may have the right to appeal the judgment of this Court. If you desire to appeal, you must give written notice of appeal to the Clerk of this Court within the time specified by the Texas Rules of Appellate Procedure. The court of appeals for this judicial district can extend that time upon proper motion. If you give notice of appeal, have the right to appeal, and you are indigent, the Court will appoint a lawyer to represent you on appeal. If you are not indigent, you must hire a lawyer to represent you on appeal and you will be required to pay for the appellate record. If your appeal is unsuccessful, you have the right to file a pro se petition for discretionary review pursuant to the Texas Rules of Appellate Procedure.

??

I like it. What about replacing "pro se" with more familiar language such as "represent yourself?" Here you are doing all the work and me criticizing. Thanks for being a sport about acting as the guinea pig. BTW, really off the point but, why were these criters adopted to explain the act of trying something for the first time? I knew cats, dogs, rats, and mice were used for experiments. Guinea pigs too?

JAS

[This message was edited by JAS on 07-10-07 at .]

quote:

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Originally posted by JAS:
Thanks for being a sport about acting as the guinea pig. BTW, really off the point but, why were these criters adopted to explain the act of trying something for the first time?

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Because guinea pigs used to be THE animal for scientific research, dating back to the 17th century. They apparently have a very similar anatomic structure as far as researching infectious diseases. (They were even launched into space by the Russians.) It's the same thing as calling someone a lab rat.

...I know way too many useless facts.

I think guinea pigs were considered a delicacy as well . . .

How about just removing the words pro se, so it reads "you have the right to file a petition for discretionary review . . ."

Intead of having a defense attorney in the courtroom, how about installing a kiosk. Defendant can punch appropriate buttons throughout the trial, depending on whether he/she wants to:

object;
request a continuance;
plead guilty or not guilty;
accept deferred;
demand a trial;
or appeal.

Wouldn't this, with all the choices put into the computer, save counties lots of money, relieve us all of the endless ineffective assistance claims and satisfy the liberals who want to program everything we do for maximum perfectness?

And, what the heck is the origin of a kiosk?

You laugh, but kiosks are part of one design I've heard of to avoid moving prisoners around. The defendant sits in a kiosk at the jail for arraignments and pleas. There is a scanner so he can supply a fingerprint or digital signature on paperwork. Communication between the court and counsel is via internet.

I like the Constantinople kiosk design much better than the Romanian variety. Interactive kiosks are a great idea for the criminal justice system too. Thanks for the input on how best to give advice. And I did not have to go far for it either.

I like the idea of kiosks but I believe we have a better chance of guinea pigs pressing the proper buttons! As for digital scanners, I can only imagine what defendants will scan in place of a fingerprint.

JAS

[This message was edited by JAS on 07-11-07 at .]