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Law Office of E. Michael Linscheid

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(415) 728-9982

Expungement & Records Clearance

Writs and Appeals

A person charged with violating a criminal offense may challenge a conviction or a pretrial ruling by filing a pretrial writ or appeal. The Law Office of E. Michael Linscheid has experience representing individuals in criminal appeals and writs in federal and state court. Mr. Linscheid has prepared appeals in a death penalty case, serious felonies, misdemeanors and traffic cases. In addition to appeals and writs pertaining to criminal pretrial rulings and convictions, Mr. Linscheid has sought review before California superior courts and has successfully litigated administrative writs of mandate challenging the suspension of driving privileges by the Department of Motor Vehicles (DMV). [LINK TO SECTION ON DMV] Appeals and writs of felony convictions are filed in a California Court of Appeal. The California Courts of Appeal are the intermediate appellate courts in California. California is divided into six appellate districts. The decisions of the Courts of Appeal are binding on the Superior Courts of California, and both the Courts of Appeal and the Superior Courts are bound by the decisions of the California Supreme Court. In California, all published appellate decisions are binding on all California Superior Courts. To the contrary, in the U.S. federal court system each trial court is bound only by the appellate decisions from the particular circuit in which it sits, as well as the U.S. Supreme Court.

California Appeals

Under California law, a criminal appeal of a felony conviction must be filed within sixty days of the date of conviction. A criminal appeal commences when a notice of appeal is filed in the trial court, which is where the conviction or ruling occurred. Once the notice of appeal is filed the trial court prepares a record containing a transcript of all oral proceedings and all documents filed or prepared by the trial court. Once the record is prepared it is certified to the appropriate court of appeal. An opening brief is filed on behalf of the defendant, the government files a response brief and a reply brief is filed on behalf of defendant.

In both misdemeanor and traffic cases, a notice of appeal must be filed in the trial court within thirty days of the date of conviction. All appellate briefs are filed in the Appellate Division of the Superior Court rather than the Court of Appeal.

Examples of issues that may be appealed include: use of evidence that should have been suppressed, court’s failure to follow proper procedures, court’s failure to properly instruct the jury, juror misconduct, improper admission or exclusion of evidence, prosecutorial misconduct and ineffective representation by defense counsel.

Appeals often involve complex issues and the process can be lengthy and time-consuming. In most circumstances an appeal will take approximately one year from the date of the filing of the notice of appeal until the court issues its decision; complicated cases can take several years. The Law Office of E. Michael Linscheid can conduct a preliminary evaluation of your case to assess the viability of an appeal.

California Writs

There are a variety of different kinds of writs, but the most common is the writ of habeas corpus, the writ of mandamus, the writ of prohibition, writ of supersedeas, and the writ of Coram Nobis.

A petition for a writ of habeas corpus can be filed any time during the pendency of a criminal case, criminal appeal or even after a direct appeal has been denied. The core requirement of a petition for habeas corpus is that the defendant is in custody and is being held without due process. The “custody” requirement has been interpreted to include probation or parole. An appellate court will make a more in depth inquiry into certain facets of a case which cannot be challenged through a traditional direct appeal, thereby making a habeas petition more useful in certain circumstances.

If a pretrial motion is denied by the trial court, including a motion to dismiss under California Penal Code section 995, or a motion to suppress evidence pursuant to Penal Code section 1538.5 then the appropriate remedy is a petition for a writ of mandamus (writ of mandate). A writ of mandamus is an order by the appellate court ordering the lower court to do something it should have done, such as grant the motion. A writ of mandamus must be filed before a plea or conviction. The basic requirements for filing a writ of mandamus are (1) the trial court acted beyond its jurisdiction or abused its discretion, and (2) the defendant has no plain, speedy, and adequate remedy.

The opposite of a writ of mandamus is a writ of prohibition

Writs of prohibition are rare in criminal cases, and are most often used by an appellate court to prevent a lower court from exceeding its jurisdiction.

Writs of supersedeas are rarely brought with regard to criminal proceedings in California. The usual purpose of a writ of supersedeas is to stay execution of a judgment pending appeal. The proper procedure for filing a writ of supersedeas would be to first file a motion in the trial court to stay execution of the judgment pending appeal, and then file the writ petition once the motion in the trial court is denied.

Writ of Error Coram nobis is commonly referred to as a motion to vacate a judgment. A writ of error coram nobis is a remedy that must be sought from the trial court only before appeal has been perfected and that requires newly discovered evidence which undermines the judgment, but does not address factual issues determined at trial. A writ of coram nobis is an order by an appeals court to a lower court to consider facts not on the trial record which might have changed the outcome of the lower court case if known at the time of trial.

The writ will issue only when the petitioner can establish three elements: (1) that some fact existed which, without his or her fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that the petitioner did not know nor could have, with due diligence, discovered the facts upon which he or she relies any sooner than the point at which he or she petitions for the writ. A petition for a writ of error coram nobis is brought to the court that convicted and sentenced the defendant.

Coram nobis is limited to cases in which a “fundamental error” or “manifest injustice” has been committed. A high burden of proof is required. It cannot be used to reopen and reargue points of law the courts have decided, but only to raise errors of fact that were knowingly withheld by the prosecutor from judges and defendants.

Federal Appeals

A federal criminal defendant who has been convicted of a crime in a United States District Court, either after a guilty plea or a trial, may challenge a conviction or sentence. In the federal system, the first appeal normally is addressed to the circuit court for the region in which the defendant is tried. In California the Ninth Circuit Court of Appeals is the proper court.

Similar to appeals of convictions in California state courts, the review by the federal courts of appeal is based entirely upon written records of the trial court proceedings, including the reporter’s transcripts of oral proceedings and documents filed in the trial court. The record on appeal is limited to the record of proceedings that existed at the time the notice of appeal was filed. The court of appeals will determine whether or not any legal errors affected the verdict or sentencing. The court of appeal can either deny the appeal, return the case to the trial court for retrial, or reverse the conviction and direct the trial court to dismiss the criminal charges. If the legal error is limited to the sentence imposed, the defendant may be entitled to be resentenced.

An appeal commences with the filing of a notice of appeal with the clerk of the court in which the case was tried within ten days after the district court enters the judgment of conviction, or within ten days after the government files a notice of appeal. While the ten-day time limit is mandatory, a defendant may, within thirty days after the ten-day period has expired, move for leave to file a late notice of appeal based upon excusable neglect. After filing the notice of appeal, the record must be prepared. The record on appeal consists of the reporter’s transcripts (oral transcript of the proceedings that occurred in the trial court) and the clerk’s records (all written pleadings such as motions, court orders and jury instructions).

Most appeals take from one year to two years from the filing of the notice of appeal to the issuance of a decision by the court of appeal. However, in complex cases, appeals can take several years to resolve.

Federal Writs of Habeas Corpus

The motion to vacate, set aside or correct a sentence in the federal system is authorized by 28 U.S.C. § 2255 which is a modern version of the common law petition for a writ of habeas corpus. The motion to vacate, set aside or correct a sentence is only available to people convicted in federal courts who are “in custody.” Similar to California state courts, in the federal system the “in custody” requirement is not limited to prisoners and includes individuals on supervised release. A motion to vacate, set aside or correct the sentence are routinely brought when a prisoner has exhausted their direct appeals. The relief sought from a motion to vacate, set aside or correct a sentence includes dismissal of all charges and release of the prisoner, retrial, or resentencing.

While direct appeals are decided based on the record from the district court proceedings that exists at the time the notice of appeal is filed. In contrast, the motion to vacate, set aside or correct the sentence permits the defendant to present the court with new evidence.

E. Michael Linscheid, Esq.

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(415) 728-9982

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