These are the basic steps in filing an appeal from a criminal conviction:
1. Filing the Claim of Appeal
– Within 42 days of a felony conviction, the defendant must file a Claim of Appeal with the Michigan Court of Appeals. By filing a timely Claim of Appeal, the defendant preserves the right to appeal the conviction and sentence. The Claim does not have to state the basis for the appeal, merely that the defendant is taking an appeal. Along with the appeal, the defendant must file a copy of the lower court docket entries, proof that the transcripts of all of the lower court proceedings have been ordered, and the Michigan Court of Appeals filing fee (currently $375.00).
Note: There are some post-judgment motions that may extend the 42-day time line, like a Motion for New Trial for example.
2. Order the transcripts
– Contact the court reporter (or reporters) in the trial court to order the transcripts of all of the pertinent hearings, motions, the trial and the sentencing. In Wayne County, there can be up to 10 court reporters on a case and in Oakland and Macomb for example, there is usually 1 or 2 per case. The court reporter will require a money deposit to begin preparing the transcripts, and, once the deposit is received, will then file a notice in the Court of Appeals that the transcripts have been ordered and their expected completion date. It is the appellate attorney’s responsibility to babysit the court reporter to make sure the certificate is filed on a timely basis.
3. Prepare and File the Brief
– Fifty-six (56) days after the transcripts are filed in the Court of Appeals, the Appellant’s Brief on Appeal will be due in the Court of Appeals. The Brief on Appeal is generally a complex and law intensive document. The more errors that are claimed to exist in the case, the more complex the appellate brief will be. The brief will contain all of the legal arguments the defendant claims entitle him to relief. The legal arguments are generally separated into subsections of the brief. The Michigan Court Rules dictate what the brief is to contain, how it is to be formatted and when and how it is to be filed. There must be a Table of Contents, an Index of Authorities, a concise statement of the questions presented, a statement of the pertinent facts and the argument portion. It takes many years before a good criminal defense appellate lawyer can perfect a persuasive style to be used in appellate pleadings.
4. Response to the Appellant’s Brief
– Under the Michigan Court Rules, the prosecution must file its response to the Appellant’s brief within 35 days of the filing of the Appellant’s brief (absent any extensions of time which are liberally granted). Extensions can be sought by motion but are more commonly given by stipulation (agreement o the parties).
5. Reply to the Prosecution/Appellee Brief
– The Defendant-Appellant has 21 days to reply to the arguments set forth in the prosecution’s brief from the day the reply is filed. The reply does not simply reiterate the arguments in the first brief, it is specifically meant to reply to the arguments made by the prosecution and provide law to counter any unanticipated arguments (factual or legal) that the prosecution included in its Response Brief.
6. Oral Argument Before the Court of Appeals
– After all briefs are filed, the Michigan Court of Appeals will likely schedule oral arguments. Arguments are made before a panel of 3 judges and are limited to 15 minutes. The appellate arguments are open to the general public, defendant’s on bond, and family members. If the defendant is in custody, he will not be allowed to attend oral argument on the appeal. The judges will typically ask numerous questions during the argument. The questions are asked of both the defendant/appellant and the prosecution/appellee and generally reflect on the issues the judges find most concerning or troubling about an issue on appeal.
7. Following the oral argument
The Court of Appeals will issue its written opinion either granting or denying the appeal (reversing the trial court or affirming the trial court, or remanding the case for clarification). The decision is almost always in writing and can take quite some time before it is completed. If the defendant wins, then the Court of Appeals, depending on what is being asked of it, will order the defendant released and the case dismissed, grant a new trial or remand the case to the trial court for resentencing. The prosecution has a limited time to request an appeal before the Michigan Supreme Court. If the defendant is in custody, he or she will generally stay in custody pending whether the additional appeal is filed. If the ruling is in favor of the prosecution/appellee, the defendant then has the ability to request an appeal before the Michigan Supreme Court.
Handing appeals from convictions in circuit and district courts in Oakland County, Macomb County, Wayne County, Washtenaw County, Livingston County and throughout the State of Michigan.
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