Criminal Appeals Timeline
Things go wrong in criminal cases. If your criminal case turned out to be a nightmare at the trial court level, now is not the time to give up, nor to just find any old lawyer to handle your postconviction/appellate matters. Appellate procedure under Sec. 809.30, Stats. can be very complicated, so now is the time to consult an experienced criminal appeals lawyer. You may also want to consult the Wisconsin Criminal Appeals Handbook. The following timeline is a thumbnail sketch of the important events in a criminal appeal.
20 days after sentencing: file the notice of intent to pursue postconviction relief. The pleading that begins the criminal postconviction and appellate process is the filing of the "notice of intent." Every person who is convicted of a crime in Wisconsin will, following the sentencing hearing, sign a form indicating that he or she is aware of this time limit. Your trial counsel is obligated to file this form for you, even if he or she does not intend to represent you in your criminal appeal. However, begin your search for postconviction/appellate counsel immediately following the sentencing hearing. It is generally not a good idea to have your trial counsel also represent you in your appeal. It usually is helpful to have a pair of fresh eyes look at the record of your case; and having your trial counsel represent you on appeal by necessity waives any claim of ineffective assistance of trial counsel. Under some unusual circumstances-- such as where there clearly no issue of ineffective assistance of counsel, and the issue was well-preserved at the trial court level-- you may want to keep your trial counsel as appellate counsel.
File a motion for release pending appeal. Immediately after filing the notice of intent, especially in misdemeanor cases, you should file a motion for release pending postconviction/appeal. The court may grant release pending appeal if the defendant is able to demonstrate that he has a reasonable chance of success on appeal, and that releasing the defendant will not endanger the community or create a risk of flight. Let's face it, though. If you are convicted of a serious felony, and the court has sentenced you to a substantial period in prison, you are very unlikely to be released pending appeal.
30 days after filing the notice of intent: order the transcript. The transcript of the trial proceedings must be ordered within thirty days following the filing of the notice of intent. At this point, the defendant need only order a copy for herself.
60 days after ordering the transcript: The court reporters must serve the transcript on postconviction/appellate counsel within sixty days after it is ordered. The appellate attorney should carefully calendar the due date. It is not at all unusual for the reporters to fail to serve the transcript on time. Of course, if the appeal becomes untimely, it is not the court reporter who will be sanctioned by the court. It will be postconviction defense counsel. Under some aggravated circumstances, the Office of Lawyer Regulation may find that appellate counsel was unethical for delay and neglect of a client matter.
60 days after service of the transcript: file the postconviction motion or notice of appeal. Once the appeals lawyer has received the transcript, he has sixty days within which to review it, and to make the decision of whether to file a postconviction motion or to appeal directly to the Wisconsin Court of Appeals. This decision depends upon the nature of the issues that are identified. Generally, if the issue requires the presentation of any additional evidence, a postconviction motion is required. Some examples of such issues are: ineffective assistance of trial counsel, newly discovered evidence, and abuse of sentencing discretion.
60 days after filing a postconviction motion: The motion must be decided by the trial court. If a postconviction motion is filed, the trial court must decide the motion within sixty days, or it is deemed denied. Again, appellate counsel must scrupulously calendar the deadline for the court to decide the motion. This is because the statutes provides that if the motion is not decided in a timely manner, the motion is deemed to be denied. This, of course, begins the time limit for filing the notice of appeal.
20 days after the postconviction motion is denied: file the notice of appeal to the Wisconsin Court of Appeals. Twenty days after the postconviction motion is denied, the appellate must file the notice of appeal. The notice of appeal should indicate that the appellate is appealing from both the judgment of conviction, and also from the denial of his postconviction motion.
40 days after the clerk of the circuit court files the record with the clerk of the appellate court: Submit the appellant's brief. Once the notice of appeal is filed, the clerk of the circuit court must assemble the record and give counsel notice of compilation of the trial court record. Read this notice carefully. Make sure that all necessary transcripts, exhibits, and documents are included in the record. Once the record is filed in the court of appeals, the appellate has forty days within which to file the appellant's brief.
30 days after the appellant files his brief: the state must file its brief. The State must file its brief within thirty days after the appellant files his brief.
10 days after the state files its brief: file a reply brief or a statement that no reply is necessary. After you receive the State's brief in a criminal appeal, you have ten days within which to file a reply brief if one is necessary. If a reply is not necessary, you must file a statement to that effect. Shortly after the briefing is complete, the case will be submitted to the court for decision.
30 days after receiving the opinion of the Wisconsin Court of Appeals: file a petition for review with the Wisconsin Supreme Court. If the opinion of the court of appeals is adverse to the appellant, then the appellate has thirty days within which to file a petition for reveiw with the Wisconsin Supreme Court. This thirty day deadline is jurisdictional and, therefore, it cannot be extended. The petition must be received by the Supreme Court within thirty days (i.e. not just mailed within thirty days). The Wisconsin Supreme Court does not review every case that comes before it. The court chooses which cases to review. Thus, a petition for review must address the reasons that the case requires the attention of the Supreme Court.
Motions for Extension All of these deadlines-- with the exception of the thirty day deadline for filing the petition for review-- are subject to extention by the Court of Appeals. The court liberally grants extensions of time so long as the motion is filed prior to the expiration fo the deadline. Nonetheless, postconviction/appellate counsel should make every effort to meet the deadline, especially where the appellate is incarcerated.
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