I'm rusty on my appellate work.........Can someone clarify this for me:

D files MTSuppress, takes plea bargain before T/C ever rules on MTS. Plea papers say, "the court must give permission before you can appeal on anymatter in the case except matters raised by written motion filed before trial." D files general notice of appeal, making no reference to pretrial motion.

Besides the fact that there is no ruling on MTS, has he complied with 25.2 by virtue of the language in the plea papers alone?

Under new rules 25.2 effective Jan 1, 2003, the trial court must certify the defendant's right to appeal. A general notice of appeal is insufficient to comply with the Rule 25.2 See Johnson v. State 84 SW3d 658. Under the old rule there were a few exceptions where a general notice might satisfy rule 25.2 but I do not think any of these would apply under the new rule. Most of the appellate courts are requiring compliance with new rules, although some will ask trial court to send the certification. With the facts given it seems the appellate court would not have jurisdiction.

What if the notice of appeal was filed in September, 2002 ?

This issue is covered on pages 136-37 of The Perfect Plea . The defendant must file a written notice of appeal that identifies a jurisdictional defect, a pretrial motion ruled upon before the plea or any matter by permission of the trial court as the basis for the appeal. In addition, the statement must be true.

The defendant having filed a general notice of appeal, you should file a motion to dismiss the appeal, notifying the court of appeals of the defect in the written notice. Provide a copy of the plea papers and judgment with the motion, showing the court there was a plea agreement followed by the judge.

Under the new rules, the certification process would pick this up without a motion to dismiss.

We avoid this problem locally by requiring a written waiver of the right to appeal in connection with every felony guilty plea. Then, we can just argue the defendant waived the right to appeal, regardless of the rules and their interpretations by the various courts of appeals and the court of criminal appeals.

John Bradley
District Attorney
Williamson County, Texas

State's brief is due on Monday and I just got this handed over to me recently --- would you still recommend the MTDismiss or go ahead and file brief with argument of no jurisdiction?

Also, I'm still bugged with language in the plea papers saying the judge must give permission to appeal except those mtters rasied by written motion filed before trial. (see 1st posting)

I need to get this off my desk and move on to other things.........!

I would consider filiing a motion to dismiss the appeal (no jurisdiction since the motion was NOT ruled on), and include an alternative request for extension of time to file my brief to allow the Appeals Court to consider the motion to dismiss - all in the interest of judicial economy.