The right to appeal in a criminal conviction is not an inherent right in the U.S. constitution.[i] The right to appeal in a criminal conviction exists only through a statute.[ii]
Generally, an appeal can be taken from a final judgment or order.[iii] This rule is strictly applicable in criminal cases because delay caused by interlocutory appeals is injurious to effective and fair administration of criminal law.
In criminal interlocutory matters, appeals cannot be allowed through certification as in criminal matters.[iv] However, under a federal statute[v] a certificate of appealability is required by federal prisoners to appeal against final sentences.[vi] The Antiterrorism and Effective Death Penalty Act of 1996 imposed the requirement of certificate of appealability in criminal cases. Judges of a federal district court and a U.S. court of appeals can issue a certificate of appealability under the Act.[vii]
A judgment is final only when all the issues raised is answered and if the judgment is enforceable. A jury verdict should be announced orally to be considered final in a criminal case.[viii]
However, according to the collateral order doctrine, a federal court of appeals can review an interlocutory decision in a criminal case when it:
- conclusively determines the disputed question,
- resolves an important issue completely separate from the merits of the action, and
- is effectively not reviewable on appeal from a final judgment.[ix]
After conviction a person cannot institute an independent, original action for a free transcript and records. The person cannot appeal any ruling in such cases as a separate and independent action.
In criminal cases, an appeal cannot normally be filed before conviction and imposition of sentence. Therefore, time to initiate a criminal appeal starts when a sentence is imposed or suspended in open court, and not when the judgment of conviction is signed.
Generally, in a criminal case an order for discovery of documents is not appealable. However, with permission of the appellate court a prosecuting attorney can appeal a trial court’s orders regarding discovery, even where sanctions for violation of such order is not imposed. In some cases, when discovery orders conflict with orders made in another case regarding the same documents or materials, and that conflict violates the rights of private parties and disrupts the administration of justice, such orders can be considered final. These final orders are appealable.[x]
A trial court order denying a defendant’s motion to withdraw a plea of guilty in a criminal case is appealable.[xi] However, an appeal does not lie from an order denying a defendant permission to withdraw a plea of guilty. This is because the order denying permission to withdraw a guilty plea is not a final judgment unless the defendant is sentenced.[xii]
Rejection of a plea bargain agreement in a pretrial order is not a final decision. The defendant can only appeal the decision after conviction and sentencing. Neither a defendant nor the government can appeal a pre-conviction order of the district court denying a proposed plea bargain agreement. However, when the defendant and the government has a plea agreement with which the defendant has not fully complied, denial of the government’s motion for specific performance of the plea agreement is final and appealable.[xiii] Dismissal of a claim to dismiss an indictment for violation of a plea bargain agreement is an interlocutory order which is appealable.
An order fixing a bail in an unreasonable amount is a final decision, and is appealable. Similarly, an order denying bail in any amount is also appealable.[xiv] The government can take an appeal to the court of appeals from an order granting the release of a person charged with, or convicted of an offense; or denying a motion for revocation of, or modification of the conditions of a decision granting release.
Under the federal appellate jurisdiction statute, a district judge’s decision to grant bail in an extradition case is a final decision for purposes of appeal. Forfeiture of a bail bond can be reviewed on appeal from a final judgment.
An order dismissing a challenge to sufficiency of an indictment is not final, and hence, not appealable. An order denying motions to quash an indictment is also not a final order. Government can appeal from the decision of dismissal of an indictment.
When an accused is confirmed as sane and competent to stand a trial it forms an interlocutory order. Such an order confirming mental competency of an accused is only reviewable after final judgment.
According to federal statute, a court can commit a criminal defendant if the court believes that the defendant is incompetent to stand a trial. Such an order is appealable, because the issue of competence to stand trial is separate from the question of the defendant’s guilt. An order of commitment is appealable also because the order has a sufficient degree of importance to warrant immediate review. One reason is to avoid delay in his/her trial. However, the prime reason is that a defendant who is not incompetent should not be confined in a psychiatric care facility. An order of commitment is appealable also because if a defendant is adjudged incapable of standing for a trial, an appealable final judgment will not result. An order of commitment is sufficiently final to warrant immediate appellate review.
An appeal can lie in criminal cases from decisions suppressing or excluding evidence or requiring the return of seized property. These decisions should not be made after the defendant has been put in jeopardy and before the verdict or finding on an indictment. However, an appeal against such decisions can lie only if the U.S. Attorney certifies to a district court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
An order transferring a criminal case from a juvenile court to an adult court is also directly appealable. Appeal can not lie from cases where double jeopardy clause prohibits further prosecution. Double jeopardy clause prevents trial of a defendant twice for a same crime based on the same set of facts. A federal district court’s pretrial order denying a motion to dismiss an indictment on double-jeopardy grounds will constitute a final appealable decision.[xv] The appropriate standard of review when the government appeals from an order granting a new trial is abuse of discretion. However, a defendant cannot use frivolous double-jeopardy motion as a method of obtaining immediate appeal and a trial continuance even when the defendant is entitled to appeal a federal district court’s denial of a motion to dismiss an indictment on double jeopardy grounds, and the constitutional right against a second trial will be denied if appellate review of the double-jeopardy claims were postponed until after conviction and sentence. A federal district court is supposed to make a certificate that a double jeopardy claim is not frivolous. If the motion is not frivolous, trial cannot proceed until the appeal is decided.
An appeal can be pursued from a federal criminal case from decisions dismissing an indictment, or granting a trial after verdict. However, when double jeopardy clause prohibits no appeal can lie in a case. The U.S. government can appeal against an order of dismissal of an indictment without regard to whether the dismissal was with or without prejudice. The government can also appeal in prosecutions for petty offenses initiated by complaint. Federal government also has the right to appeal in reversal of conviction by a district court. Government can initiate appellate proceedings in a criminal contempt case.
According to the federal statute, the government can appeal against a decision dismissing an indictment even if the indictment is dismissed without prejudice. However, if the dismissal of an indictment represents a ruling in favor of the accused of some or all of the factual elements of the offense charged, it amounts to an acquittal. In such cases no government appeal is allowed against the dismissal.
The federal government has the right file a notice of appeal in district courts in cases that are otherwise final, when the sentence in the case:
- is imposed in violation of law,
- is imposed because of incorrect application of the sentencing guidelines,
- is less than the sentence specified in the applicable guideline, or
- is imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
The federal government can prosecute an appeal filed only after approval of the Attorney General, the Solicitor General, or a deputy Solicitor General designated by the Solicitor General. This personal approval is only needed in cases where a notice of appeal is filed by the U.S. government in the district courts.
An order quashing a grand jury subpoena is appealable. Under the federal statute, a district court’s order partially granting the government’s motion to compel the attorney of a fugitive from justice to testify before the grand jury is also an appealable order. Additionally, a district court’s order disqualifying the Attorney General from participating in a grand jury investigation is immediately appealable.
[i] McKane v. Durston, 153 U.S. 684 (U.S. 1894)
[ii] In re Walker, 56 Cal. App. 3d 225 (Cal. App. 5th Dist. 1976)
[iii] Raimondi v. State, 8 Md. App. 468 (Md. Ct. Spec. App. 1970)
[iv] 28 USCS § 1292
[v] 18 USCS § 3731
[vi] Watman v. Groman (In re Watman), 304 B.R. 553 (B.A.P. 1st Cir. 2004)
[vii] 28 USCS § 2253
[viii] Paul v. People, 105 P.3d 628 (Colo. 2005)
[ix] Picardy v. Sky River Mgmt., 2009 Haw. App. LEXIS 778 (Haw. Ct. App. Dec. 21, 2009)
[x] State ex rel. Guarantee Ins. Co. v. District Court, 194 Mont. 64 (Mont. 1981)
[xi] Jurgenson v. State, 166 Neb. 111 (Neb. 1958)
[xii] State v. Fensom, 69 S.W.3d 550 (Mo. Ct. App. 2002)
[xiii] State v. Thomas, 79 Wn. App. 32 (Wash. Ct. App. 1995)
[xiv] Highfield Water Co. v. Washington County Sanitary Dist., 295 Md. 410 (Md. 1983)
[xv] State v. Baranco, 77 Haw. 351 (Haw. 1994)