Appellate
FAQs
How Do I Begin
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What Are the Deadlines
for
Filing an Appeal?
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Frequently Asked Questions
What Are the Deadlines for Filing
an Appeal?
California Court of Appeal (State)
The California Court of Appeal has very strict rules regarding
how and when appeals may be filed, and does not have the authority
to give parties extensions to file the appeal. This is not because
the Court of Appeal is such a bear for details, but because the
timeliness of filing a notice of appeal is jurisdictional–
and must be raised by the Court of Appeal on its own if it is not
raised by the opposing party.
Civil:
In state court, the notice must be filed either (a) 60 days after
service of notice of entry by either the clerk or a party, or (b)
180 days after entry of judgment, whichever comes first. Cal. R.
Ct. 2(a). This period is not extended for service of notice of
entry by mail, overnight delivery or fax. Cal. Civ. Proc. Code
sec. 1013(a),(c),(e).
The state deadline is extended by 30 days if any of the following
post-trial motions are made and denied: for a new trial, for judgment
notwithstanding the verdict (but only if accompanied by denial
of a new trial motion), to vacate the judgment, or for reconsideration.
However, the deadline cannot be so extended for more than 180 days
after entry of the judgment. Cal. R. Ct. 3. The grant of any of
those motions would effectively wipe out the judgment, and would
itself be independently appealable. Cal. Civ. Proc. Code sec. 904.1(a)(2),(4).
The denial of a motion for judgment notwithstanding the verdict
is itself independently appealable. Cal. Civ. Proc. Code sec. 904.1(a)(4).
Criminal:
A notice of appeal and any statement required by Penal Code section
1237.5 must be filed within 60 days after the rendition of the
judgment or the making of the order being appealed. Except as provided
in rule CRC 8.66, no court may extend the time to file a notice
of appeal.
Juvenile:
Appeals on juvenile delinquency or dependency may be presented
to the Juvenile Clerk's Office. The document will be received and
forwarded to the Superior Court Appeals Division. To appeal from
an order or judgment, you must file written notice of appeal within
60 days after rendition of the judgment or making of the order
or, in matters heard by a referee, within 60 days after the order
of the referee becomes final.
If you wish to preserve your right to appeal the court's decision
of the order setting a hearing date pursuant to Welfare and Institutions
Code §366.26
a petition for extraordinary writ must be filed.
The main difference between Juvenile appeals and Civil/Criminal
appeals is that the court requires a form (JV-800) per CRC 8.480,
or for writs, form (JV-820) per CRC 8.482 to be filed with the
Juvenile Clerk’s office.
United States Court of Appeal (Federal)
Following a trial or plea, you may appeal your case to the United
States Court of Appeals provided you file a Notice of Appeal within
the time limits prescribed by statute and the Circuit rules. Also,
be sure that as part of a plea agreement, you did not waive your
right to appeal. This is why appellate counsel is critical to preserving
and defending your rights in the Court of Appeal.
Criminal:
in a criminal case, a defendant shall file the notice of appeal
in the district court within 10 days after the entry either of
the judgment or order appealed from, or of a notice of appeal by
the Government. A notice of appeal filed after the announcement
of a decision, sentence, or order - but before entry of the judgment
or order - is treated as filed on the date of and after the entry.
If a defendant makes a timely motion specified immediately below,
in accordance with the Federal Rules of Criminal Procedure, an
appeal from a judgment of conviction must be taken within 10 days
after the entry of the order disposing of the last such motion
outstanding, or within 10 days after the entry of the judgment
of conviction, whichever is later. This provision applies to a
timely motion:
(1) for judgment of acquittal;
(2) for arrest of judgment;
(3) for a new trial on any ground other than newly discovered
evidence; or
(4) for a new trial based on the ground of newly discovered
evidence if the motion is made before or within 10 days after
entry of the judgment.
A notice of appeal filed after the court announces a decision,
sentence, or order but before it disposes of any of the above motions,
is ineffective until the date of the entry of the order disposing
of the last such motion outstanding, or until the date of the entry
of the judgment of conviction, whichever is later.
Civil:
In federal court the notice must be filed "within 30 days after the judgment
or order appealed from is entered." Fed. R. App. P. 4(a). Note that the
rule says 30 days from entry, not from service of notice of entry. While, the
clerk is supposed to serve notice of entry by mail, the clerk's failure to do
so does not affect the time to appeal. Fed. R. Civ. P. 77(d) (but see below with
respect to relief from an untimely notice of appeal).
Upon the making of any of the following motions the time for appeal
runs from entry of the order disposing of the last such motion:
for judgment under Rule 50(b, to amend or make factual findings
under Rule 52(b), for attorney's fees under Rule 54 if the district
court extends the time to appeal, to alter or amend the judgment
under rule 59, for a new trial under Rule 59, or for relief from
judgment under Rule 60. Fed. R. App. P. 4(a)(4).
If a notice of appeal has been filed between the entry of a judgment
and the filing of one of those motions, it does not become "effective"
until after the last motion has been determined.
Relief from an Untimely Notice of Appeal
In state appeals, the deadline for filing a notice of appeal is
"mandatory" and the court of appeal is "without
jurisdiction"
to proceed if the notice of appeal is untimely. Hollister Convalescent
Hosp., Inc. v. Rico, 15 Cal. 3d 660, 542 P.2d 1349, 125 Cal. Rptr.
757 (1975); see also Cal. R. Ct. 45(c),(e). However, in criminal
cases where the defendant asked and the attorney promised the defendant
a timely notice of appeal would be filed but failed to do so within
the statutory time limits, a writ of habeas corpus will lie for
ineffective assistance of counsel. If the writ is granted, the
Court of Appeal will consider the appeal timely filed.
Under Federal Rule of Appellate Procedure 4(a)(5) the district
court may extend the time for filing upon a showing of excusable
neglect or good cause provided that an appropriate motion is filed
not later than 30 days after the deadline.
If a party does not in fact receive notice of entry of the judgment
within 30 days of the entry, the district court may reopen the
time for filing a notice of appeal provided that an appropriate
motion is filed within 7 days of receipt of the notice of entry
or within 180 days of entry of judgment, whichever is earlier.
Fed. R. App. P. 4(a)(6).
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