Summary: A defendant who was convicted and sentenced in the Superior Court may bring an Appeal to ask a higher court to overturn or modify the conviction and sentence.
Danger: The case may be sent back for retrial, and there is a chance of a greater sentence or additional charges. Also, failure to properly alleged federal constitutional errors could bar the defendant from seeking review of the errors in federal court.
Attorney: An attorney is probably not needed to file a Notice of Appeal. It is a rather simple form. It is, however, almost impossible for a defendant to properly research and write all of the other pleadings required for an Appeal, so an attorney is highly advisable.
Lead Statute: Penal Code §1237 (felonies) or Penal Code §1466 (misdemeanors)
Criminal Conviction: An appeal may be used to challenge the validity of a conviction or may be used to challenge the sentence
- Infraction Forms
- Misdemeanor Forms
- Felony Forms
- Notice of Appeal – cr120
Where to File: In the Superior Court that sentenced the defendant.
For felony cases, the Superior Court will notify the Court of Appeals that the appeal has been initiated, and then future documents will be filed in the Court of Appeals.
For misdemeanor cases, the Superior Court will notify the Appellate Division of the Superior Court, and then future documents will be filed in the Appellate Division.
Who to Serve: No service is required for the Notice of Appeal; other documents require service of multiple copies on multiple parties. The details of service requirements are beyond the scope of this web page.
Appearance Required: No. An attorney usually argues the appeal at the hearing, but the defendant’s presence is not required.
- Within 60 days after judgment for felonies.
- Within 30 days after judgment for misdemeanors.
Effect if Granted: The entire case may be overturned, the sentence may be modified, or the court can take other appropriate action.
An appeal is a request that a higher court review the conviction and sentence given by the Superior Court. The appeal can request that the entire conviction be overturned; it can request that the sentence be reduced, request that the requirement to register as a sex offender be terminated, or it can request other changes to the conviction and the sentence.
A conviction and sentence following trial can always be appealed, but a guilty or no contest plea can generally only be appealed if:
- The appeal only challenges the sentence, but not the validity of the plea, such as arguing that it was wrong for the court to require the defendant to register as a sex offender.
- The appeal argues that the court improperly denied a motion to suppress evidence.
- The trial court issues a written Certificate of Probable Cause, which indicates that the defendant might have some other legal reason to challenge the plea or sentence.
An appeal is generally limited to the records created in the Superior Court (copies of pleadings, transcripts of testimony, trial exhibits, etc.), and the Court of Appeals does not hear testimony or receive evidence outside the record. An appeal is, for the most part, limited to errors of law, such as the trial court allowing improper evidence or the trial court giving improper instructions to the jury.
An appeal is initiated by filing a form called a Notice of Appeal, which is included above, and can usually be completed and filed by the defendant without the need of an attorney.
There are many detailed and technical rules for other documents required for the proper hearing of the appeal in misdemeanor and felony cases, such as the Designation of Record, Opening Brief, and Reply Brief. The rules even specify what color cover to use for the briefs and what fonts are acceptable. Preparation of these pleadings is beyond the scope of this web page and far beyond the ability of most defendants.