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"I want to appeal!" How and when to file an interlocutory appeal in a criminal case.
By Attorney Jeffrey W. Jensen
There is a scene in virtually every movie featuring a criminal trial in which the judge makes some monumentally unfair ruling and then the lawyer for the aggrieved party leaps up from his chair and demands an "interlocutory appeal." It is all very dramatic- the trial must be put on hold while the issue is brought to the higher court.
If only it were that easy. The problem, of course, is that this almost never happens during real trials. It never happens because the law creates a number of nearly insurmountable procedural obstacles for a party seeking an interlocutory appeal.
Every person convicted of a crime may, as a matter of right, appeal to the Court of Appeals. However, the person must wait until he has been convicted and sentenced to appeal. The Court of Appeals is reluctant to entertain an (interlocutory) appeal when the defendant may not even be convicted. Thus, a petition for leave to appeal a non-final order must demonstrate that the party seeking to appeal will be irreparably harmed in some way if he must wait until the end of the case to appeal. This is a very rare circumstance. "Irreparable harm" is clearly presented where, for example, a juvenile is waived from children's court into adult court. If the juvenile were forced to wait until the end of the case to appeal the waiver order the children's court may lose jurisdiction (because the child turns 17 years old) by the time the Court of Appeals reverses the waiver order.
Sec. 809.50(1)(c), Wis. Stats. provides that the Court of Appeals will accept an appeal from a non-final order (i.e. an "interlocutory appeal") only when there is a, "showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice."
Every criminal defendant understandably believes that he or she is irreparably harmed whenever the trial judge makes an unfavorable ruling. Many times the ruling in question permits the state to introduce some very damaging evidence against the defendant. The defendant believes that this evidence will guarantee his conviction and, once convicted, he will have no chance on appeal. This is certainly not true but, even if it were, this is simply not the sort of "irreparable harm" that the statute contemplates. The "harm" of erroneously admitting evidence in a criminal trial is repaired an order from the Court of Appeals reversing the conviction and ordering a new at which the evidence will not be admissible.
If an interlocutory appeal is appropriate, though, the process must begin within ten days of the entry of the written order that is at issue by the filing of a petition in the Court of Appeals. The petition must establish the criteria set forth in Sec. 809.50(1)(c), Stats.
The mere filing of the petition, though, does not automatically put the trial on hold. The party filing the petition must first move the trial court for a stay of proceedings to allow the Court of Appeals time to consider the petition. Such a motion has almost no chance of success in the trial court if it will disrupt a jury trial that is in progress. Once the trial court denies the motion the party may then apply to the Court of Appeals for a stay of proceedings.
For these reasons, if you are involved in a criminal trial you are well-advised to refrain from leaping up from your chair and demanding an immediate appeal every time the judge rules against you. The odds are overwhelmingly stacked against you.
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