How to file a Notice of Appeal in an Arizona Misdemeanor Criminal Court Case

How to file a Notice of Appeal in an Arizona Misdemeanor Criminal Court Case

It happened. You were charged with a crime. You did everything you possibly could to work your way through it. You went to trial, and you presented your evidence. The judge heard it; the jury heard it, but they came back with a guilty verdict and you lost!

As an attorney, this is a scenario that I have been a part of, and it’s something that I have witnessed on behalf of our clients. It’s not a fun experience and it’s a devastating blow. Especially when you fought so hard, invested so much energy and were convinced that there was going to be some light at the end of the tunnel. Now what do you do? Many people just roll over, take their lumps and say to themselves that’s the end of the road for me on this one! I gave it my best shot. Now, I’m just going to call it a day. But I am here to let you know that there is still a lot you can do through something called an Appeal Process.

That’s what this article is going to explore: How to File a Notice of Appeal in an Arizona Misdemeanor Criminal Court Case. If you look closely, you will note that it says, Notice of Appeal. This is the early stage of an appeal process in any criminal case. So, we are going to delve into a lot of different items here. We are going to examine why you should appeal, the basis for an appeal and also show you what an actual notice of appeal looks like, so if you are inclined you can file this appeal on your own. Please note, I said: How to File a Notice of Appeal in an Arizona Misdemeanor Criminal Court Case. This presumes that you want to file this notice of appeal. In order to determine if this is a good decision you will need to be able to answer the question, why? Why should you file an appeal?

Many people come to our law firm and ask that very same question, before a case has even begun. Why should I hire a lawyer? Is it worth it? What are the chances of me winning my case? Can we beat this thing? Is there an opportunity for us to win? Is this something I can do on my own? The long and short of it is, that if you lost your case and you want to win your case, the only way for you to do that is to appeal your case. If you want anything better than a zero percent chance of succeeding or altering that conviction, you must appeal it! So, the real question is, why wouldn’t you?

Now there are some limitations on appeals, there are some challenges, and we are going to examine those things, but let’s think about this from the court’s perspective or the legal perspective. If you have gone through a trial and you have lost your case, there are really only four things that can happen:

The first is the worst. The appeals court, superior court in this instance, can review what happened in your trial and say we think everything was fine, that everything went according to plan, that there’s nothing to appeal here and we’re going to affirm the result. This means you’re still found guilty and that you’re still convicted of the crime. Not good. However, there are three other possible conclusions which are hopeful and promising.

The second scenario is that the appeals court can over-rule the trial court. After reviewing the record, the appeals court can overturn the trial court’s decision. The appeals court can say even though you found this person guilty, we find this person not guilty, therefore we are going to overturn the conviction. Essentially the appeals court can say that the decision to convict was not good, that it was not a reasonable and valid trial, and therefore we are going to reverse or overturn the trial board.

The third scenario is the appeals court can ask the trial court to modify the original sentence. The appeals court can say that the original sentence or the original rendering of that sentence was invalid and request that the trial court modify the sentence. This is done in the interest of the defendant so the person that was convicted can obtain a better outcome resulting in an improved situation.

The fourth possible outcome is a complete re-do. The appeals court can say we really don’t know what happened. We don’t know if this was the right outcome or the wrong outcome. We don’t know if the rules were followed or not followed and if there was a problem. So, we are just going to have you re-do the trial all over again. The appellate court remands or returns the case to the trial court and you get another chance. It’s like turning the clock back and you get another crack at it.

So, that should answer your question: “Why Appeal?’ We feel that the last three options are pretty good, so if you are in a position where you have been convicted of a crime and you want to do something about it then filing an appeal, in most circumstances, is the only way to move forward in overturning a verdict. If that makes sense to you then, great, read on! If not, then you might want to stop right here.

Now, it’s important to note that there is a big difference between what is called a Notice of Appeal and an actual Appeal. These two phrases represent two separate processes. This article is going to cover the process of How to File a Notice of Appeal. This is a critical step in the appeals process because if you miss the date for filing your notice of appeal, you will completely lose out and not be able to continue with your appeal. We will touch on the subject of appeals since that is part of the subject matter, but the importance of getting that notice of appeal done right and done timely cannot be over-emphasized!

So now that you know the reason why you are appealing is because you’ve got some good options for improving your set of circumstances if the appeal is successful, it’s important to focus on the notice of appeal, not the appellate memorandum or any of that other complicated legal stuff, just the notice of appeal and the basis for why people would appeal a conviction.

In reality there are hundreds, or even thousands, of different reasons for appealing a case. Some of the reasons or basis for appeals can include the following:

  • Lack of Sufficient Evidence
  • Improper Admission or Exclusion of Evidence
  • Abuse of Judicial Discretion
  • Prosecutorial Misconduct
  • Juror Misconduct
  • Ineffective Assistance of Counsel
  • Illegal Rulings/Judgement/Sentencing
  • Improper Jury Instructions

We are going to touch on a couple reasons as to why people might file an appeal in this article. Lack of Sufficient Evidence is a common reason. This is where the court will present their evidence, the government (prosecution) will present theirs. And even though the evidence presented by the prosecution doesn’t meet the burden of proof, the judge or the jury will still find the defendant guilty. Another reason someone might file an appeal is for Juror Misconduct. An example of this would be if a juror called or texted their spouse in order to get their opinion on say a DUI case because their spouse works in the medical profession and has specific knowledge about that subject matter. This would be juror misconduct because the juror communicated with someone outside of the jury panel while deliberating the findings of the court. Both of these two examples could merit filing an appeal and requesting that the court give you a new trial.

Oh, one other reason to consider filing an appeal is because in the state of Arizona, many judges in the justice court system are not actual lawyers. Because they are not licensed lawyers, they could not represent somebody else in court, yet they can still sit on a bench and convict people of crimes. It’s a huge problem and one of the reasons why you might want to consider filing a notice of appeal. They are making rulings on other people’s cases even though they never went to law school, never took a bar exam and never became a licensed attorney. Yet they are still ruling on criminal cases. It’s kind of bizarre, but it is how things are done in the state of Arizona, unfortunately, at least for now.

This solution is for people who lost their criminal misdemeanor case. Misdemeanors are different than felonies. There are two categories of crimes, misdemeanors and felonies. Felony appeals have a different set of rules. We are only covering misdemeanor crimes under Arizona law where the case was lost at trial and it was not resolved in some other way, such as a plea deal, diversion or evidentiary hearing where there was a final order that was ruled upon, etc. This is for people with recent guilty verdicts as there are critical time limitation requirements. Your rights to appeal are usually forfeited if you fail to appeal within certain time limit. And finally, this is for people who want to win their case and believe with all their heart that something went wrong at their trial. It is not for the faint of heart, as this process involves risk. It also requires time, money and patience.

Just to be clear this remedy is not for people who pled guilty. You cannot appeal a case with a guilty plea. The appropriate method to address that situation is to petition for post-conviction relief.

Please remember, if you plead guilty you can’t appeal a guilty plea. If you went in and signed a document entering into a contract with the court that said you were guilty you can’t turn around now and appeal that choice. You also cannot appeal because you are simply unhappy with the outcome. You need to be able to clearly articulate what went wrong. Your appeal must be substantiative and needs to be based on reason, not emotion. Additionally, if you are looking for a pro-bono attorney/free lawyer good luck. You will be hard-pressed to find criminal attorneys that take appeals cases in the first place, much less for free. There are some community resources like Arizona Justice Project that might be able help. Their vision is to achieve justice for the innocent and wrongfully imprisoned in Arizona. There is also the Arizona Foundation for Legal Services and Education.

As stated earlier, this article is only going to cover misdemeanor criminal cases as there are different sets of rules that apply depending upon where you are at in the court system. However, it is still helpful to understand the hierarchy of courts in the state of Arizona. Imagine, if you will, a pyramid with the City and Justice Courts occupying the largest part at its base. This is where misdemeanor criminal cases are heard and adjudicated. This comprises the lowest level criminal courts in Arizona. These courts handle Class 1, 2 and 3 misdemeanors. As the pyramid gradually narrows or tapers going up, you will find Superior Court. These courts are responsible for overseeing Class 1 through 6 felony criminal charges. They govern entire counties such as Maricopa, Pima, Pinal, etc. Above that is the Appellate Court. This is the Arizona Court of Appeals. This court hears appeals from the Superior Court and conflicts between counties. There are two divisions in the state of Arizona, one in Phoenix, and one in Tucson where the counties are split. At the apex or pinnacle of the pyramid is the Arizona Supreme Court. This court hears appeals from the Court of Appeals and addresses conflicts between the Court of Appeals. Death penalty appeals go straight to the Supreme Court.

One of the most important things to keep in mind regarding appeals are the critical timelines that must be followed and then focusing on the two main parts of the appeal process. First, it’s the Filing of the Notice of Appeal and second it’s the drafting of the Appellant Memorandum. The Notice of Appeal must be filed within 14 days of a guilty verdict. This is the first document that we file if we lose a case. A decision is made right then and there while we are still in the courtroom to go on record of having filed the Notice of Appeal. If we wait 15 days to file that Notice of Appeal, we are out of luck and have forfeited our right to appeal. So, whether or not a decision is made to actually go ahead with the appeal, it buys some thinking time while you weigh the pros and cons of going forward with a full-fledged appeal. The next item that must be attended to timely is you must pay for the record within 14 days after filing your Notice of Appeal. And finally, if after thinking about everything you decide to go through with the actual appeal, then the Appellate Memorandum must be filed within 60 days from the Notice of Appeal filing deadline. Once that is filed then the prosecutor’s office has 30 days to file their own Appellee Memorandum. Once 30 days has passed, they will hold onto it for another 60 days and then transfer it to Superior Court. Once Superior Court takes control of the case, they will assign a case number to it and take it from there. So, as you can see this is quite a protracted process of about 6 months once that you have filed the Notice of Appeal. It’s a classic example of hurry up and wait. But, if you don’t hurry and file that Notice of Appeal timely, you will miss your opportunity to appeal all together. Getting that Notice of Appeal filled out is fairly straight-forward. It’s two pages long, it’s easy to fill-out and you do not need a lawyer. You do need to have access to Microsoft Word and a printer. We will provide a link below so you can download the free notice of appeal form, get it filled out and filed with the court and then contact R&R Law Group to go over strategies and determine if it’s winnable. You can then decide if you want to go forward with filing the actual Appeal or Appellant Memorandum. Completing the form is not complicated, but it still needs to be done correctly just the same. Make sure your paperwork is correct by doing the following: Submit an extra copy of all filed documents to the court, make sure the court stamps and then returns copies of all filed documents to you and keep all documents for your records so you can prove, if you have to, that you have submitted documents. Keep copies of everything to include emails, note phone calls as to when (dates), with whom and subject matter. If the court decides to refute something, you want to have proof that you did everything right. It’s a bit of a paper chase in that you will be dealing with many different documents so just be ready for it. But, then again, that’s why people hire attorneys.

Now, you aren’t done just yet. Here’s what the quick and dirty next steps look like. You’re going to want to make sure that you pay for a copy of the record. Communicate with the court clerk and find out how much the record costs. The costs vary slightly but expect to pay around $325. Be sure and obtain copies of the trial records and research legal issues. The records may be audio, video or both of the trial and you are wise to order transcripts. Occasionally there is a court reporter and if that’s case there will be transcripts of the entire trial, in which case you should order a copy. Listen to the record, identify the appealable issue and then draft your Appellant Memorandum. Make sure your Appeal is a formal written memorandum and then properly file your Appeal. It’s best to have an experienced attorney write the formal memorandum and file it for you.

Final takeaways are to remember that filing a notice of appeal is not the final appeal. It is acceptable to file a notice of appeal, investigate, and then decide not to appeal. Filing the notice of appeal provides the opportunity for more time to make an informed decision as to whether or not it makes sense to actually file the final appeal. Critical timing requirements must be met, and important timing rules must be followed. Failure to file timely may result in your loss of the right to appeal. Do not delay your research and preparation. Deadlines are not regularly extended, so do not procrastinate! Stay impeccable organized, keep copies, and store receipts of all submissions. Most of all good luck and remember you will get your life back on track!

About the Author: Ryan W. Cummings

Ryan attended the University of Evansville in Indiana where he earned his Bachelor of Science in Finance and Marketing and was a member of Lambda Chi Alpha. He then received his Juris Doctorate from the Phoenix School of Law where he accelerated his education to graduate early. While at the Phoenix School of Law, Ryan was active within the legal community and was the school’s Student Pro- Bono Coordinator. Ryan also joined the Steering Committee on Arizona Wills for Heroes, a group that writes wills for Police, Fire, EMT, First Responders, Prison and Probation Officers. Ryan is still part of the Steering Committee and actively participates in Wills for Heroes.