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Appellate Procedure

Appellate Procedure. Julia Sheridan, ADA sheridan@cumberlandcounty.org 207-871-8384 April 4, 2012. Appellate Issue Questions. When and where is the NOA filed? What information must it contain? What must accompany the NOA? What actions does the trial court clerk take?

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Appellate Procedure

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  1. Appellate Procedure Julia Sheridan, ADA sheridan@cumberlandcounty.org 207-871-8384 April 4, 2012

  2. Appellate Issue Questions • When and where is the NOA filed? • What information must it contain? • What must accompany the NOA? • What actions does the trial court clerk take? • What actions does the appellate court clerk take?

  3. Appellate Issue Questions • What actions remain to be taken by the lower court? • What options are available if the transcript cannot be produced? • What must the record contain on appeal? • What portions of the transcript must be produced for the appeal? • When must briefs be filed?

  4. Appellate Issue Questions • What must the briefs look like? • What else must be filed with the briefs? • What information must or should be contained in the appendix? • Who is responsible for preparing the appendix? • Who bears the burden of an insufficient record or transcript?

  5. Appellate Issue Questions • Who is responsible for the cost of transcript production and record production? • Is the sentence or order appealed from stayed pending the appeal? • What orders may be appealed to the Superior Court from the District Court?

  6. Appellate Issue Questions • What orders may be appealed from the District Court or Superior Court to the Law Court? • What sanctions apply for failure to comply with the rules? • Which appeals are discretionary?

  7. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Appeals from District Court orders on Motions for Correction or Reduction of Sentence, M.R. Crim.P. 35 • Appeals from D.Ct. orders on Motions for Probation Revocation, sec. 1207 • Appeals from D.Ct. revocation of supervised release, sec. 12333

  8. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Appeals from D.Ct. revocation of administrative release, sec. 1349-F • Denials of petitions seeking indigent status for purposes of appeal

  9. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Superior Court orders on appeal are final • Appeal is taken to court in county where crime was committed. • Appeal is taken by filing a NOA with clerk of the District Court

  10. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • NOA must be filed within 21 days from entry of judgment on docket • Upon a showing of excusable neglect the court may extend for up to 21 days

  11. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • NOA shall set forth title of case, adverse ruling making final disposition being appealed from • Shall be accompanied by proposed order for transcript of rule 35 motion hearing or revocation proceeding

  12. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • NOA and transcript order must be signed by defendant or attorney and clerk shall mail date-stamped copy of NOA and transcript order to attorney for State and ERD of Judicial Branch and annotate the mailing on the docket

  13. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • D.Ct. transmits copy of case and docket entries to clerk of S.Ct., who dockets appeal and gives it a S.Ct. docket number • S.Ct. sends information to the parties, as well as date by which record on appeal and reporter’s transcript must be filed

  14. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • D.Ct.’s only other actions are to assign counsel for indigent defendant, grant stay of execution and fix or revoke bail pending appeal (when permitted by statute) • Within 56 days of receipt of date-stamped transcript order form, ERD shall file transcript with clerk of D.Ct.

  15. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Regardless of whether ERD requests additional time, party ordering transcript must exercise due diligence to assure its timely filing • If electronic recording is unavailable, appellant’s counsel may prepare statement of evidence, must be served on opposing counsel within 28 days after filing NOA, objections served within 7 days

  16. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Then submitted to D.Ct. for approval, and then inclusion in appellate record • Parties can sign statement that appeal can be decided without transcript and showing how questions arose and were decided, and setting forth necessary facts for appeal, appeal can proceed without transcript or statement in lieu of transcript

  17. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Statement must include concise statement of points to be relied on by appellant, must be submitted to D.Ct. within 28 days after filing NOA, and D.Ct. shall approve for inclusion in appellate record if complete and conforms to truth

  18. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • If parties agree that transcript is unnecessary, must seek order from S.Ct. relieving ERD of duty to prepare and file transcript • Correction or modification of record may be made in D.Ct. and all other questions as to form and content of record are before S.Ct.

  19. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Appellant may dismiss appeal with signed, written dismissal if before date scheduled for argument or submission on briefs, or upon stipulation of parties • If after this date, dismissal is only by leave of S.Ct.

  20. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • If either party fails to comply with rule 36 or 36A within times prescribed, S.Ct. may on motion of either party or its own initiative, impose sanctions including involuntary dismissal and refusal to allow either side oral argument • Court must dismiss if it lacks subject matter jurisdiction

  21. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Contents of record on rule 35 appeal must include docket entries, NOA with date of filing, all original papers relating to rule 35 proceeding, i.e., motion, exhibits, adverse order, supplemental material, any new transcript, sentencing-trial-rule 11 transcript (if authorized by S.Ct.)

  22. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Upon appeal of probation revocation, revocation of supervised release, revocation of administrative release, record consists of docket entries, original papers, exhibits, adverse order, NOA with date of filing, original transcript, supplemental material, original sentencing transcript (if ordered by S.Ct.)

  23. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • If not in the record, within 7 days of filing NOA, appellant may file with S.Ct. and serve upon ERD and opposing counsel motion seeking to include sentencing, trial or rule 11 proceeding, and within 7 days of receipt opposing counsel may seek to include additional portions

  24. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • ERD shall file transcript within 56 days of receipt of date-stamped copy of order on motion • ERD can request additional time • If defendant is indigent Judicial Department pays; if defendant is not indigent, shall make payment arrangement with ERD within 7days after order’s receipt

  25. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Within 21 days of filing NOA, D.Ct. files with S.Ct. clerk contents of rule 35, record except transcripts, and furnish copies to parties • Inidigent party gets free copy • Non-indigent pays at rate set by Chief Justice of SJC

  26. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • When clerk receives transcript from ERD, clerk must transmit to clerk of S.Ct. • When rule 35 record complete, clerk shall send parties written briefing and argument schedule • Within 21 days of filing NOA in appeal of probation revocation, supervised release or administrative release revocation, clerk shall file with S.Ct. record and furnish copies to parties

  27. M.R. Crim.P. 35, 36-38: Appeals from the District Court to the Superior Court • Indigent defendants get free copies and non-indigents pay according to rate set by SJC • Clerk also transmits to S.Ct. transcripts filed by ERD • Upon docketing of record S.Ct. sends written briefing and argument schedule to parties

  28. Appeals in Juvenile Matters, Rule 36B • Juvenile or parent, guardian or legal custodian may appeal pursuant to statute from adjudication, order of disposition or modification, detention order or refusal to modify detention order, of finding of failure to comply with deferred disposition • Latter appeal is discretionary • State may appeal from failure of juvenile court to order bind-over

  29. Appeals in Juvenile Matters, Rule 36B • NOA and transcript order form are filed with D.Ct., which transmits date-stamped copies to ERD, S.Ct. and appellee • D.Ct. transmits docket entries to S.Ct. • Appellee has 7 days to order additional portions of transcript • Review is for error of law or abuse of discretion

  30. Appeals in Juvenile Matters, Rule 36B • Appeal of order finding inexcusable failure to comply with deferred disposition may be considered on the merits only after S.Ct. has preliminarily determined that appeal presents significant issue of fact or law or consideration of merits would serve interests of justice • Superior Court may affirm, reverse, modify order, enter new order, or remand for further proceedings • S.Ct. may order stay of execution and release pending appeal of adjudication or order of disposition

  31. Appeals in Juvenile Matters, Rule 36B • Appeal may be taken within 5 days after entry of order • Upon showing of excusable neglect, court may, before or after time has expired, with or without motion or notice, extend time for filing NOA for a period not to exceed 15 days from expiration of original time period • Appeal of detention order does not stay proceedings but pending appeal from adjudication or order of disposition, juvenile court may order stay of execution and release

  32. Record on Appeal in Juvenile Cases, Rule 36C • Juvenile Court clerk’s record • Transcript, sound recording or statement in lieu of transcript • Record contains docket entries, originals of petition, order of disposition or order appealed from, motions and orders thereon, findings of fact, exhibits and list of retained exhibits

  33. Record on Appeal in Juvenile Cases, Rule 36C • If documentary exhibit can be easily reproduced Juvenile Court clerk shall retain a copy • Tangible objects, such as weapons, shall be retained by Juvenile Court clerk • District Court clerk shall file Juvenile Court clerk’s record with Superior Court within 21 days of filing of NOA

  34. Record on Appeal in Juvenile Cases, Rule 36C • Appellant shall ensure time limits are met • Time limits may be increased or decreased upon showing of good cause • ERD shall file transcript with Superior Court clerk and furnish copies to parties within 56 days of filing of NOA • ERD can file for extension at least 5 days before 56 days expires

  35. Record on Appeal in Juvenile Cases, Rule 36C • Upon docketing of record clerk of Superior Court shall issue a briefing and argument schedule to counsel and if either party fails to comply Superior Court may impose sanctions including dismissal of appeal and refusal to allow one or both parties to present oral argument

  36. Briefs and Oral Argument in Superior Court, Rule 36D • Appellant’s brief is due 35 days after mailing of notice of docketing of record • Appellee’s brief is due within 28 days after service of appellant’s brief • Appellant may file a reply brief within 14 days after service of brief of appellee • Time limits can be increased or decreased upon showing of good cause

  37. Briefs and Oral Argument in Superior Court, Rule 36D • If appellant fails to comply with brief deadline Superior Court may dismiss appeal • If appellee fails to comply appellee will not be heard at oral argument except by permission of the court • Appeals shall be in order for oral argument 14 days after date on which appellee’s brief is due or is filed, whichever is earlier • If either party fails to comply court may dismiss appeal and refuse to allow either side to argue

  38. Stay of Execution of Sentence, Rule 38 • Any portion of sentence involving imprisonment, probation or administrative release shall be stayed if an appeal is taken and defendant is admitted to bail pending appeal • Other portions of the sentence are stayed only upon request of defendant and only if he/she is admitted to bail

  39. Stay of Execution of Sentence, Rule 38 • If defendant cannot post bail as set, court may upon request stay any monetary portion of the sentence and may stay any other sentence alternative on any terms considered appropriate • If judgment is vacated, clerk shall refund money posted to cover monetary portion of sentence and if judgment is affirmed, funds so posted shall be applied by clerk in payment of money alternative

  40. Stay of Execution of Sentence, Rule 38 • If judgment is affirmed on appeal, court-ordered stay automatically terminates when mandate of appellate court is entered in criminal docket of trial court • When stay of imprisonment automatically terminates, clerk of trial court shall mail date-stamped copy of mandate to parties and to sheriff, and defendant shall contact sheriff within 3 days of mailing to arrange for surrender that day or at sheriff’s direction next day

  41. Stay of Execution of Sentence, Rule 38 • If such arrangements are not timely made or not complied with, upon request of sheriff or prosecution, or by direction of court, clerk shall issue arrest warrant • Upon issuance of warrant court shall declare forfeiture of post-conviction bail

  42. Maine Rules of Appellate Procedure Appeals to the Law Court

  43. Maine Rules of Appellate Procedure • Apply to review of judgments, order or rulings of the District Court, Superior Court, Probate Court, or a single justice of the Supreme Judicial Court, which are by law reviewable by the Law Court • Rules apply to all appeals in which the NOA is filed on or after January 1, 2001

  44. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • Appeal is commenced by filing NOA with clerk of court from which appeal is taken • Appellant files with NOA order for those portions of transcript appellant intends to include in record on appeal • NOA and transcript order form must be signed by appellant or attorney • NOA shall specify party taking appeal and shall designate judgment or part thereof appealed from

  45. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • In civil case NOA must be filed with statement of issues on appeal, rule 5(b)(2)(A) • In criminal case when court imposes any sentence after trial, or after plea to murder or Class A, B or C crime, with sentence of one year or more that is not agreed to pursuant to M.R. Crim.P. 11A, defendant shall be advised of right to appeal

  46. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • If defendant is unrepresented, court shall cause a NOA to be prepared and filed on behalf of defendant • Except upon appeal of PCR, a NOA filed by State in criminal case shall be accompanied by written approval of AG, pursuant to rule 21(b) • Clerk must file approval, note it on the criminal docket and mail date-stamped copy of defendant and/or attorney

  47. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • Clerk must mail date-stamped copy of NOA and transcript order form to clerk of Law Court, court reporter or ERD, and attorneys of record other than appellant • In tort claims action clerk shall mail copy of NOA to AG, as well as parties, and shall note on docket names of parties to whom mailed and date of mailing

  48. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • In criminal case NOA must be filed within 21 days after entry of judgment on docket • If timely motion for arrest of judgment, for judgment of acquittal after verdict, for new trial, or for correction or reduction of sentence under M.R. Crim.P. 35(a) or 35(c) is made within 21 days after entry of judgment an appeal may be taken within 21 days after entry of the order granting or denying the motion • An appeal from denial of petition contesting extradition shall be filed 7 days after entry of order

  49. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • In civil case NOA must be filed within 21 days of order being entered on docket, unless shorter time is provided by law • Any other party may file NOA within 14 days of date on which first notice of appeal was filed

  50. Filing and Docketing the Appeal; Dismissal, Rules 2, 3, 4 • Running of appeal period is terminated by following timely motions, and full time for appeal commences to run from date of entry of order on motions: findings of fact and conclusions of law, M.R. Civ.P. 52(a), denying motion for new trial, M.R. Civ.P. 59, granting or denying motion for judgment under M.R. Civ.P. 50(b), granting or denying motion under M.R. Civ.P. 52(b) to amend or make additional findings of fact, granting or denying motion under M.R. Civ.P. 59 to amend judgment

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