SEPTEMBER 2006
Appellate Jurisdiction
FILING A TIMELY APPEAL IN A FELONY CASE
By Harriet E. Cummings, Esq.
Appeals play a vital role in the litigation process in criminal cases. Published decisions of the Nevada Supreme Court help to shape the development of state criminal law. Moreover, because state litigation in felony cases sets the stage for federal post-conviction proceedings, the appellate process is important not just at the state level but also in subsequent federal litigation.
In felony cases there are often at least two appeals at the state level.[1] Most common is the direct appeal to the Nevada Supreme Court following conviction in the district court.[2] Second-most common is the appeal following denial of post-conviction habeas relief.[3] Other appeals may be taken, depending on the individual case.[4] The Nevada Supreme Court cannot hear any appeal, however, unless it has jurisdiction over the case. Potentially meritorious appeals have been lost because appellate jurisdiction was not properly obtained.[5]
The Nevada Supreme Court's jurisdiction is limited both in time and in scope. Appellate jurisdiction over a case begins at the time a timely notice of appeal is filed[6] and runs until remittitur issues.[7] Ordinarily, remittitur issues 25 days after the Nevada Supreme Court enters its ruling in a case.[8] The date remittitur issues can be extended, however, if a party files a petition for rehearing of the appeal in the Nevada Supreme Court[9] or petitions the United States Supreme Court for a writ of certiorari.[10]
As for the scope of the Nevada Supreme Court's jurisdiction, the Court has indicated that, in general, there are three elements to appellate jurisdiction in a criminal case: “(1) an aggrieved party (2) must file a timely notice of appeal (3) from an appealable order or judgment.”[11] All three elements are necessary for the court to obtain jurisdiction over an appeal.[12] In any given appeal, the first and third elements are generally not within the attorney’s power to control, but the first one is. From the practitioner's perspective, then, filing a timely appeal is the most important aspect of appellate jurisdiction in a criminal case.
In a minority of other states, filing a timely notice of appeal is not considered jurisdictional.[13] In Nevada, however, the filing of a timely notice of appeal is considered a fundamental jurisdictional requirement.[14] To ensure that this crucial step is taken properly, the attorney must file a timely notice of appeal in accordance with the applicable statutes. In the most common situation – an appeal by the defendant from a judgment of conviction – the notice of appeal must be filed no later than 30 days after entry of the judgment of conviction.[15] The 30-day rule applies to most appeals in criminal cases.[16] The judgment is deemed entered when it is signed by the judge and filed with the clerk.[17] However, the defendant is allowed to file a notice of appeal after the judge has orally pronounced the decision but before the judgment has been entered, in which case the notice of appeal is deemed filed on the day the judgment of conviction is entered.[18] The notice of appeal must be signed by the attorney and must be filed with the clerk of the District Court, not the clerk of the Supreme Court.[19]
The 30-day rule also applies to the state if it is the appellant.[20] The state, however, cannot appeal from a judgment of conviction in a criminal case.[21] An important exception to the 30-day rule is when the state seeks to appeal from an order of the District Court ruling on a motion to suppress evidence. The notice of appeal must be filed in the district court within two judicial days of the District Court's ruling and in the Supreme Court within five judicial days of the district court's ruling.[22] The state may be required to make a preliminary showing of the propriety of the appeal and whether there may be a miscarriage of justice if the appeal is not entertained.[23]
The second most common type of appeal in criminal cases is an appeal from denial of a post-conviction petition for a writ of habeas corpus.[24] The notice of appeal must be filed within 30 days after service of written notice of entry of the district court's ruling.[25] Note the difference between an appeal from a judgment of conviction, where the time starts running from the date of entry of the judgment,[26] and an appeal from denial of post-conviction habeas, where the time starts running from the date of service of notice of entry of the judgment.[27] Notice of entry of the judgment must be served by the court clerk on both the attorney and on the client.[28] If a party is ordered committed to a jurisdiction outside Nevada, the District Court must stay enforcement of its order for five days, during which the aggrieved party can file a notice of appeal to the Supreme Court.[29]
There are certain types of motions that toll the time for filing the notice of appeal. One is a timely motion in arrest of judgment.[30] Such a motion challenges the court's jurisdiction or alleges that an offense has not been charged.[31] To be timely, a motion in arrest of judgment must be made within seven days of the guilt determination.[32] If the motion is denied, the notice of appeal must be filed within 30 days after entry of the order denying the motion.[33] Another motion that tolls is a timely motion for a new trial.[34] If the motion for new trial is based on grounds other than newly-discovered evidence, it must be filed within seven days of the guilt determination to be considered timely.[35] The notice of appeal from the judgment of conviction must be filed within 30 days after entry of the order denying the motion.[36] If the motion for new trial is based on newly discovered evidence, it must be filed within 30 days of entry of the judgment to be considered a timely tolling motion.[37] The time for filing the notice of appeal from the judgment of conviction is likewise tolled for 30 days after entry of the order denying the motion.[38] A motion for reconsideration in habeas corpus proceedings does not toll the time for filing the notice of appeal.[39]
Filing a timely appeal is the most important step the attorney must take in the appellate process because any other error that might occur does not affect the validity of the appeal. Filing an untimely notice of appeal, however, is generally fatal.[40] Although the Nevada Supreme Court has some flexibility regarding the rules of appellate procedure,[41] it cannot enlarge the time for filing a notice of appeal.[42] The reason for this is that filing a timely notice of appeal is considered an essential prerequisite to the perfection of an appeal.[43] An untimely notice of appeal fails to vest jurisdiction in the Nevada Supreme Court and is grounds for summary dismissal of an appeal.[44] To avoid such a dismissal, a timely notice of appeal must be filed. Therefore, a prudent practitioner should always consult the applicable rules to determine the proper time frame for filing a notice of appeal.
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An earlier version of this article was published by Nevada Attorneys for Criminal Justice in Unreasonable Doubt, Vol. X, No. 1, Sept. 1999, at 22-25.
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About the Author
Harriet E. Cummings presently serves as Appellate Deputy to the Office of the Nevada State Public Defender in Carson City. She is a member of the Board of Continuing Legal Education, and lectures and writes primarily on appellate practice and ethics. She previously worked in both the federal and state court systems and is a former instructor at McGeorge School of Law. Ms. Cummings earned her law degree from the University of California, Davis, School of Law, where she received the American Jurisprudence Award in Criminal Law. Her undergraduate degree is from The Johns Hopkins University.
[1] This article is limited to discussion of the Nevada Supreme Court’s appellate jurisdiction in felony cases. For information regarding appellate jurisdiction of the district courts in misdemeanor cases, see generally, Nevada Appellate Practice Manual, 2004 Edition Chapter 9 at 9.3-9.7.
[2] Nev. Const. art. 6, § 4; see also NRS 177.015(3).
[3] See generally, NRS 34.720 et seq.
[4] For example, there may be an interlocutory appeal by the state from a pretrial order of the District Court granting a motion to suppress evidence. NRS 177.015(2).
[5] See, e.g., Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994) (appeal dismissed for lack of jurisdiction even though appellant presented potentially meritorious issues).
[6] NRS 177.155; see also NRAP 4(b)(1), Robertson v. State, 109 Nev. 1086, 1089, 863 P.2d 1040, 1042 (1993) (timely notice of appeal divests District Court of jurisdiction and vests jurisdiction in Supreme Court), overruled on other grounds, Krauss v. State, 116 Nev. 307, 310, 998 P.2d 163, 165 (2000).
[7] NRS 177.305.
[8] NRAP 41(a). No formal remittitur issues, however, if an appeal is voluntarily dismissed pursuant to NRAP 42. Id.
[9] Id. A timely petition for rehearing filed pursuant to NRAP 40 stays the remittitur until disposition of the petition. Id. If the petition is denied, remittitur issues 15 days after entry of the denial. Id. A petition for en banc reconsideration filed pursuant to NRAP 40A does not stay the remittitur. NRAP 40A(b); NRAP 41(a).
[10] NRAP 41(b). A stay of the remittitur must be sought. Id. If the petition is denied, remittitur issues immediately. Id.
[11] Nevada Appellate Practice Manual, 2004 Edition Ch. 9 at 9.1.
[12] Note, however, that if one or more elements of appellate jurisdiction is absent, then that may provide a basis for seeking extraordinary relief, because a prerequisite for obtaining an extraordinary writ from the Court is that there be no plain, speedy and adequate remedy in the ordinary course of the law. See e.g., NRS 34.170 (writ of mandamus); NRS 34.330 (writ of prohibition).
[13] See, e.g., State v. Reid, 894 A. 2d 963, 980, 981 n.7 (Conn. 2006) (Norcutt, J. concurring) (citing the following as examples of states which do not consider an untimely appeal as a rigid jurisdictional defect: Isaacson Structural Steel Co. v. Armco Steel, 640 P.2d 812, 815 n.8 (Alaska 1982) (requirement as to timely notice of appeal is not jurisdictional and can therefore be relaxed to avoid surprise or injustice); Connelly v. Doe, 566 A.2d 426, 428 n.5 (Conn. 1989) (time limit for filing appeal not jurisdictional); State v. Knight, 909 P.2d 1133, 1138 (Haw. 1996) (deadline for filing notice of appeal may be relaxed where justice warrants, such as when defense counsel inexcusably or ineffectively fails to pursue appeal); Johnson v. Smith, 885 S.W.2d 944, 949-50 (Ky. 1994) (filing of notice of appeal is not a matter of jurisdiction, but only of procedure); Commonwealth v. Pappas, 735 N.E.2d 1240, 1241 (Mass. 2000) (court has jurisdiction to consider motion to enlarge time for filing notice of appeal nunc pro tunc); Schaefco, Inc. v. Columbia River Gorge Comm’n, 849 P.2d 1225, 1226 (Wash. 1993) (court may extend time for filing notice of appeal in extraordinary circumstances to prevent a gross miscarriage of justice)).
[14] Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 1134 (1998). In exceptional cases, however, the court has relaxed the rule even in the absence of a timely filed notice of appeal. Huebner v. State, 107 Nev. 328, 810 P.2d 1209 (1991) (record ambiguous as to when notice of appeal received by court clerk).
[15] NRAP 4(b)(1); NRS 177.015(3). Note that this is different from the rule in civil cases, in which the time runs from the date of service of notice of entry of the judgment, NRAP 4(a)(1), not entry of the judgment itself.
[16] NRAP 4(b)(1); NRS 177.015.
[17] NRAP 4(b)(1).
[18] Id.; Clem v. State, 119 Nev. 615, 620 n.19, 81 P.3d 521, 525 n.19 (2003). A similar rule applies when the defendant files a notice of appeal after the verdict but before sentencing. George v. State, 122 Nev. ___, ___, 127 P.3d 1055, 1056 (2006). These rules allow the defendant to file a "premature" notice of appeal. This is in contrast to civil cases, where filing a notice of appeal before entry of a written order or judgment fails to divest the ditrict court of jurisdiction. NRAP 4(a)(1),(6); Rust v. Clark County School Dist., 103 Nev. 686, 688-90, 747 P.2d 1380, 1381-83 (1987). Also note that these rules apply only to the defendant and not the state. NRAP 4(b)(1); State v. Sant, 110 Nev. 748, 750, 877 P.2d 545, 546 (1994) (premature notice of appeal by state fails to vest jurisdiction in Supreme Court).
[19] NRS 177.075(3)(a); NRAP 3(a).
[20] NRAP 4(b). The state must file its notice of appeal after entry of the judgment or order being appealed. Id.
[21] NRS 177.015(3); State v. Dist. Ct. (Jackson), 121 Nev. ___, 116 P.3d 834, 836 (2005).
[22] NRS 177.015(2). The rule allows for such an appeal by the state only. Id.
[23] Id.
[24] See generally, NRS 34.360 et seq., 34.720 et seq., NRAP 22. The rules also grant the state the right to appeal from an order granting a post-conviction petition for a writ of habeas corpus. NRS 34.575(2). Note that denial of pretrial habeas, however, is not appealable. See White v. Warden, 96 Nev. 634, 635-37, 614 P.2d 536, 536-38 (1980). Only the state may appeal from an order of the district court granting a pretrial petition for a writ of habeas corpus. See NRS 34.575(3).
[25] The 30-day rule applies to both the petitioner and the state. NRS 34.575(1) & (2).
[26] NRAP 4(b)(1).
[27] NRS 34.575(1) & (2). This is akin to the rule in civil cases. See NRAP 4(a)(1) and footnote 15, supra. However, the Nevada Supreme Court has allowed a habeas petitioner to file a "premature" notice of appeal, as it does in criminal cases. Hill v. Warden, 96 Nev. 38, 40, 604 P.2d 807, 808 (1980). Thus, it is apparent that habeas corpus is considered neither strictly civil nor strictly criminal for all purposes: "It is a special statutory remedy, which is essentially unique." Id.
[28] NRS 34.830(2). Note that the form notice of entry contained in NRS 34.830(3) already incorporates into its time calculations the rule of NRCP 6(e), which allows the addition of three days' time when service is accomplished by mail. The rules governing habeas are unique and sometimes borrow from both the criminal and civil context. Although the Nevada Rules of Civil Procedure apply to post-conviction habeas proceeding unless they are inconsistent with the habeas rules themselves, NRS 34.780, the court has held that when it comes to appellate jurisdictional prerequisites, the habeas rules, not rules of civil appellate procedure, govern. Klein v. Warden, 118 Nev. 305, 310-11, 43 P.3d 1029, 1033 (2002).
[29] NRS 34.560(2). If a timely notice of appeal is filed, the stay continues during the pendency of the appeal, and the party remains in Nevada custody. NRS 34.560(3) & (4).
[30] NRAP 4(b)(1).
[31] NRS 176.525.
[32] Id. The District Court may, within the seven-day period, set a different time limit. Id.
[33] NRAP 4(b)(1).
[34] Id.
[35] Id.; NRS 176.515(4). As is true with a motion in arrest of judgment, the District Court may, within the seven-day period, set a different time limit. NRS 176.515(4).
[36] NRAP 4(b)(1).
[37] Under NRS 176.515(3), a motion for new trial based on newly discovered evidence may be made within two years after the guilt determination; however, for it to be deemed a tolling motion for purposes of filing a notice of appeal from the judgment of conviction, it must be filed within thirty days of entry of the judgment. NRAP 4(b)(1); Vest v. State, 120 Nev. ___, ___, 98 P.3d 996, 996-97 n.5 (2004).
[38] NRAP 4(b)(1).
[39] Phelps v. State, 111 Nev. 1021, 1022, 900 P.2d 344, 345 (1995). Nor are motions for reconsideration independently appealable. Id.; cf. Alvis v. State, Gaming Control Bd., 99 Nev. 184, 186, 660 P.2d 980, 981 (1983) (motion for rehearing does not toll time for filing notice of appeal).
[40] NRAP 3(a); but see Huebner, supra at n.14.
[41] NRAP 1(c); NRAP 2.
[42] NRAP 26(b).
[43] Scherer v. State, 89 Nev. 372, 374, 513 P.2d 1232, 1233 (1973). Jurisdiction cannot be conferred on the court by the consent or stipulation of the parties or their counsel. Id.
[44] See Jordan v. Director, Dep't of Prisons, 101 Nev. 146, 148, 696 P.2d 998, 999 (1985).