Appeals Versus Writs

19 Aug

Appeals Versus Writs

What is the Difference Between Appeals and Writs?


An appeal may be a proper remedy when:


  1. A Judge makes a bad ruling;
  2. Prosecutors act unethically;
  3. Defense counsel fails to act with competence; or
  4. The jury returns a wrong verdict.

An appeal is not proper when the appeal attempts to:

  1. Introduce new evidence;
  2. Retry the case; or
  3. Hear testimony from witnesses.


To preserve the right to appeal, the Appellant must file a “Notice of Appeal” within 60 days after the rendition of the judgment or the making of the order being appealed. The right to appeal will be lost if the notice is not filed within this timeframe. Certain issues may also be lost on appeal if those issues are not preserved. (Such issues include, but are not limited to, counsel’s failure: [1] to timely object to testimony, rulings, jury instructions; and/or [2] failure to make an argument on the claim.)


Generally speaking, an Appeal is a limited review of a final judgment used to attack legal errors made at the Superior Court level. To be successful on Appeal, the “Appellant” must demonstrate that the error(s) substantially affected their rights (i.e.: constitutional rights, due process, right to a fair and impartial trial.)


Since appeals are limited in review, an Appellate Brief must be based solely upon the record of the case. The appeal must contain appropriate citations to the record to support the brief. Failure to correctly cite to the record will result in the brief not being received by the Appellate Court.


The record of the case includes the Reporter’s Transcript and the Clerk’s Transcript. The Reporter’s Transcript is a record of what was said during the case. The Clerk’s Transcript is a record of the documents presented in the case.


Appeals are filed directly to the Court of Appeal in which the Superior Court sits.

After all parties have submitted on their arguments, the appeal is reviewed by a panel of justices. The justices may conclude:

  1. There was no error by the trial court;
  2. There was error, but the error was harmless and did not affect Appellant’s rights;
  3. There was error warranting remand with instructions by the Appellate Court to fix the error; or
  4. There was error warranting reversal.


What is the Difference Between Appeals and Writs?

Habeas Corpus Writ Petitions: 

A Habeas Corpus Writ Petition, (“WHC”), is a remedy for persons challenging their conviction or sentencing conditions. The person filing the petition is labeled the “Petitioner.” A WHC petition is the last tool to challenge a conviction or sentence because it follows after all possible appeals are filed.


The necessary elements to be met before filing a WHC include:

  1. Petitioner must be “in custody”;
  2. The Petitioner must have exhausted all other remedies (e.: filed all possible appeals);
  3. The issue(s) raised in the petition must be one(s) not already resolved on appeal.


A WHC petition may be proper when:

  1. Petitioner was convicted under an unconstitutional law;
  2. Petitioner was subject to ineffective assistance of counsel;
  3. There were instances of prosecutorial misconduct in the lower courts;
  4. Petitioner was not competent to stand trial;
  5. New evidence was discovered in the case (e.: DNA evidence);
  6. Laws affecting the case have been changed; and
  7. Petitioner suffers from challenging conditions of confinement.


Advantages to Writs:

Unlike an appeal, a WHC allows Petitioner to go outside of the record of the case. Petitioner is allowed to present and attach supporting documentation. For this reason, the Courts have held certain subsequent claims, (such as claims of ineffective assistance of counsel), which are being addressed in a WHC petition—after also being addressed in an appeal—are allowed.

Going outside of the record is critical because the issues addressed in the WHC are rarely preserved in the records. (i.e.: misconduct by the prosecutor; ineffective assistance of counsel; new evidence; change in law.)

Unlike an appeal, a WHC petition must be filed with the Superior Court first. A WHC petition may only be filed at the Court of Appeals after the petition is denied at the Superior Court level.

Successful Petitions:

If the court grants a petition, then the court may order the government to:

  1. Release the prisoner;
  2. Reduce the charges; or
  3. Modify the petitioner’s sentence or sentencing conditions.


What is the Difference Between Appeals and Writs?

Most recently, California has focused on passing legislation encouraging rehabilitation and reform of our criminal justice system. California’s more recent approach to criminal justice is focus on addressing: [1] underlying causes of criminality; and [2] retracting legislation enhancements which excessively punish individuals. When the law changes in such a way, a criminal defense attorney may file a Writ to quickly and efficiently address and enforce said changes.


Some examples of recent Senate and Assembly Bills affecting terms of sentence include:


Senate Bill 567:

Amends Penal Code section 1170 to give the court discretion to impose sentence not to exceed the middle term unless circumstances in aggravation were stipulated to by the defendant or found true beyond a reasonable doubt by the fact-finder.


Senate Bill 136: 

Eliminates One-year Prior Prison Term Enhancements.


Senate  Bill  1393:

New Discretion for Judges to Strike Five-year Prior Serious Felony Conviction Enhancements.


Senate Bill 620:

New Discretion for Judges to Strike Firearm Use Enhancements.


Senate Bill  180:

Eliminates Most Drug Trafficking Recidivism Enhancements


Senate Bill 483:

Declares Certain Enhancements Legally Invalid Including Prior Prison Terms and Some Drug Enhancements


Senate Bill 81:

Amends Penal Code section 1385 to Require Dismissal of Enhancements If It Is In The Furtherance of Justice.


Assembly Bill 333:

Redefines PC 186.22’s “Pattern of Criminal Gang Activity” and Requires Separate Trials On The Underlying Offense and Gang Enhancement When Requested By The Defense


Senate Bill 73:

Permits Persons Convicted of Certain Drug Offenses to be Granted Probation or a Suspended Sentence


Assembly Bill 1950:

What is the Difference Between Appeals and Writs?

Reduces the Length of Probationary Terms

Write a Reply or Comment