Criminal Justice Procedures - Post Conviction
Post-conviction Appeals & Pleadings
A defendant who has not pled guilty or admitted a probation violation will be able to appeal. In order to appeal, the defendant must file a notice of appeal within 20 days after entry of judgment and sentence. A defendant may also file a petition for post-conviction relief (Rule 32) which is heard by the trial court.
The Court of Appeals, and Arizona Supreme Court can review rulings made on appeals and/or Rule 32's. Review is often discretionary (always with Arizona Supreme Court, unless death penalty imposed, and then there is automatic review.)
The right to appeal is a statutory right and an Arizona constitutional right. There are two statutes, one for the state and one for the defendant that list the types of orders that can be appealed. If the order that an attorney is trying to appeal is not listed in the statute, there is no right to appeal. A defendant who pleads guilty in a non-capital case no longer has the right to appeal.
How an Appeal Works
This section deals with appeals from superior court. Justice court appeals are handled differently.
Starting an Appeal
An appeal is started by filing a notice of appeal in the Superior Court. The notice of appeal is filed in Superior Court even though the case will be heard by the Court of Appeals so that the Clerk of the Court knows to send the record to the appellate court. In most cases, when the notice of appeal is filed, the person appealing files a designation of record. This tells Superior Court what part of the record needs to be sent to the appellate court in order for the issues to be decided.
The opening brief is due 40 days after the appellate court sends a notice that the record is complete. The answering brief is due 40 days after service of appellants' opening brief. Appellants' reply brief is due 20 days after service of the answering brief. Sometimes parties will get extensions of time to complete a brief, and this will then change the deadlines. When the defendant appeals, the Attorney General's Office handles the appeal. The trial prosecutors get copies of the briefs as well, but do not have to respond.
When the state appeals, it has to dismiss the case without prejudice before it can appeal. If the case is not dismissed, the Rule 8 speedy trial time limits continue to run.
If the state appeals an order after judgment affecting the substantial rights of the victim, the state may only appeal at the victim's request.
When a party has a right to appeal, the appellate court has to decide the case. It has no choice. The Court of Appeals will issue either an opinion or a memorandum decision. Opinions are published in the law books and can be used as precedent in other cases. Memorandum decisions only apply to the case in which the appeal was filed, and may not be cited as precedent.
Review of Court of Appeals' Decision
The party that loses on appeal may file a motion for reconsideration with the same appellate court with 15 days after the clerk has mailed notice of the court's decision. A motion for reconsideration need not be filed before a party may petition for review.
The party that loses on appeal can file a Petition for Review to the Arizona Supreme Court within 30 days of the Court of Appeals' decision or 15 days from the decision on a motion for reconsideration. The petition for review is filed in the Court of Appeals, even though it is going to be heard by the Arizona Supreme Court. This is so the Clerk of the Court of Appeals knows to send the record to the Arizona Supreme Court. A cross-petition for review can be filed in the Court of Appeals within 15 days of the filing of the petition for review if the other party has some issues it wants the Supreme Court to decide. The response to the petition for review is filed in the Arizona Supreme Court, not the Court of Appeals.
Granting a Petition for Review is discretionary, which means the Arizona Supreme Court has the power to hear the petitions that it wants to and deny those it does not want to hear. The court can also accept review of one or more of the issues in the Petition and reject the others. If review is granted, supplemental pleadings might be filed or oral argument heard before the decision is rendered.
Petitions for Post-Conviction Relief (Rule 32)
Petitions for Post-Conviction Relief are filed in the trial court, and are usually heard by the judge who presided over the trial or did the sentencing in plea cases. There is no limit on the number of Rule 32's a defendant can file, but Rule 32 limits the claims the defendant can make in the Petition. Rule 32's are usually filed in instances where an issue cannot be decided on the current record (i.e., ineffective assistance of counsel) and an additional hearing is required to get the information into the record. Since defendants who plead guilty may not appeal, they will certainly file Rule 32's, which they are still permitted to do.
How a Rule 32 Works
Only defendants file Rule 32's. The Rule does not even apply to the state. The defendant files a notice of post-conviction relief at the trial court level and states whether he wants counsel appointed. Within 60 days, appointed counsel, or the defendant if counsel is not appointed, files the petition for post-conviction relief.
A defendant is now required to support his petition with citations to the record and legal authority, and a memorandum of points and authorities is required. An incomplete petition will be returned to the defendant by the court with instructions as to how the petition is insufficient. A defendant has 30 days after receipt to refile a complete petition. If the defendant does not refile the petition after 30 days, the petition will be summarily dismissed by the court. The state must respond to the petition with 45 days. The defendant may file a Reply within 15 days after receipt of the response.
The trial court will review the petition within 20 days after the due date of the defendant's reply. The court must identify all claims that are procedurally precluded. If, after doing this, the court finds no remaining claims with a material issue of fact or law, the court may summarily dismiss the petition without a hearing. If the petition is not summarily dismissed, the court must set a hearing within 30 days on those claims that present a material issue of fact or law. The state must notify the victim, upon the victim's request pursuant to statute or court rule relating to victims' rights, of the time and place of the hearing. The court will rule within 10 days after the hearing ends.