TITLE FOUR — SENTENCING
Rule 35. Appeal
Appeal as a Matter of Right. Direct appeals of criminal proceedings are a matter of right, as 6 R. Stat. § 131.801 provides. Every appeal in a criminal proceeding lies to the Supreme Court, which exercises appellate jurisdiction in all cases, criminal and civil, under Const. art. V, § 3.
Appeal by the Defendant. A defendant may appeal from:
A final judgment of conviction;
An order granting probation;
An order revoking probation;
A sentence; and
as 6 R. Stat. § 131.804 and these rules provide. Judgment Entered in Absence. A judgment rendered against an absent defendant is subject to appeal and to post-conviction review to the same extent as any other judgment. Neither a waiver of presence, nor a failure to appear, nor the entry of a criminal default, nor a declaration of fugitive status operates as a waiver of the right to appeal or of the right to seek post-conviction relief, as 6 R. Stat. § 131.501(g) provides. Counsel who represented the defendant at a trial in absentia shall file the notice of appeal where the defendant so directs and, where the defendant cannot be reached, shall file it to preserve the right unless the defendant has directed otherwise. The period prescribed by Rule 35(8)(a) runs from the entry of the judgment and is not enlarged by the defendant’s absence; relief from its expiration is sought in the Supreme Court as Rule 35(8)(a) and Rule 35(8)(e) provide, and not by a trial court enlargement under Rule 46(11).
When the Defendant Has No Appeal.
A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, and a defendant who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal, as 6 R. Stat. §§ 131.803(b) and 131.804 provide.
Where a plea reserved appellate review under Rule 12(2)(f), the appeal is governed by this rule and by the Ridgeway Rules of the Supreme Court, and the notice of appeal shall be filed within the period that Rule 12(2)(f) prescribes.
Appeal by the State. The State of Ridgeway may appeal from:
An order dismissing an indictment or information;
An order dismissing a count of an indictment or information;
An order dismissing an affidavit charging the commission of a criminal offense;
An order dismissing a violation of probation or community control;
An order granting a new trial;
An order arresting judgment;
An order of sentencing;
A judgment discharging a prisoner on habeas corpus;
An order denying restitution;
An order suppressing evidence or evidence in limine at trial; and
An order withholding an adjudication of guilt,
as 6 R. Stat. § 131.805 provides. An interlocutory appeal by the State is governed by Rule 15.
Appeal by One of Several Defendants. One or more defendants who are tried jointly may appeal, but those who do not join shall not be affected by the appeal except by the express provision of the Supreme Court, as 6 R. Stat. § 131.802 provides. A defendant who does not join in an appeal remains bound by the judgment entered against that defendant, and the entry of a co-defendant’s appeal neither stays nor disturbs it.
Terms and Conditions of Appeal and Post Conviction Review.
An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.
A judgment or sentence may be reversed on appeal only where the Supreme Court determines, after a review of the complete record, that prejudicial error occurred and was properly preserved in the court or, if not properly preserved, would constitute fundamental error.
The party challenging the judgment or order of the trial court has the burden of demonstrating that a prejudicial error occurred in the court. A conviction or sentence may not be reversed absent an express finding that a prejudicial error occurred in the court.
This subdivision states the terms and conditions prescribed by 6 R. Stat. § 131.803 and shall be applied consistently with 7 R. Stat. § 132.401, by which no judgment shall be set aside or reversed and no new trial granted, in any cause civil or criminal, on the ground of the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless after an examination of the entire case it appears that the error complained of has resulted in a miscarriage of justice.
Notice of Appeal.
When Taken. An appeal may be taken by either party only within the time provided by the Ridgeway Rules of the Supreme Court after the judgment, sentence, or order appealed from is entered, as 6 R. Stat. § 131.806 provides. No provision of these rules enlarges, abridges, or modifies that period, except that, where judgment was entered against an absent defendant under Rule 18(c) or Rule 18.3, the Supreme Court may grant relief from the expiration of the period as subdivision (8)(e) provides. The period runs from the moment the electronic filing system records the judgment, sentence, or order upon the docket, computed as Rule 46 provides. No trial court enlargement under Rule 46(11) applies to this period.
Where Filed. The notice of appeal is filed in the trial court, in the case in which the judgment, sentence, or order was entered, and is filed and served as Rule 32 provides.
Contents. The notice of appeal shall state:
The username of the appellant, and whether the appellant is the defendant or the State;
The case number of the trial court matter;
The judgment, sentence, or order appealed from, the Bates number of the filing in which it was entered, and the date and time of its entry;
That the appeal is taken to the Supreme Court;
Where the appellant is the defendant, whether the defendant is then in custody and whether a stay is sought under Rule 31; and
Where the appeal is taken from a plea reserving appellate review, the ruling or rulings reserved.
Opening the Appellate Matter. The appellate matter is opened in the Supreme Court by a filing which names the originating Superior Court case number, which the electronic filing system verifies to exist. The filing code of that filing is derived from the type of the case and is not chosen by the appellant. A matter of the Supreme Court is not upon the public docket, and a filing in it is reviewed by the staff of that court and by no other clerk.
Advice of the Right to Appeal. The trial court’s duty to advise the defendant of the right to appeal after a judgment of guilty is entered is prescribed by Rule 28(3). A failure to advise does not enlarge the period prescribed by Rule 35(8)(a), but is a ground upon which the Supreme Court may grant relief.
The Record.
The record upon appeal shall be defined and assembled pursuant to the Ridgeway Rules of the Supreme Court.
The record comprises the docket of the trial court matter; every filing accepted for filing in it and every document of such a filing; the charging instrument; every order, judgment, ruling, and decree entered; the exhibits received; the findings of the judge; and the record of the proceedings conducted in open court or in the proceeding communications of the case.
Where the proceedings were conducted in the proceeding communications, the record of those proceedings is the record maintained under Rule 12(1)(a) and Rule 24. The appellant shall cause that record to be filed in the trial court matter as one or more documents, no document exceeding fifty (50) megabytes.
The clerk shall transmit the record to the Supreme Court. The clerk shall not withhold any part of the record, and no part of the record shall be sealed, redacted, or restricted; Rule 32(14) governs.
Where the trial court matter is a restricted matter, or where the record includes material from a restricted matter, the record is transmitted through the workflow that owns that matter and not through the general channel.
Findings by the Trial Judge. The judge shall make all findings of fact relevant to an appeal within the period prescribed by Rule 35(8)(a) for filing the notice of appeal, and shall enter them upon the docket.
Correction of the Record. Clerical mistakes in judgments, orders, or other parts of the record may be corrected as Rule 42 provides. During the pendency of an appeal such mistakes may be corrected before the appeal is docketed in the Supreme Court, and thereafter while the appeal is pending may be corrected only with the leave of the Supreme Court. No correction alters the filing date of any filing, and no filing is removed from the record.
Stay. The entry of an appeal does not stay the execution of a sentence of imprisonment, of a fine, of an order of restitution, or of an order revoking probation. A stay is obtained only as Rule 31 provides. A defendant who has appealed shall not be discharged from custody pending final decision upon the appeal, and no bail and no bond shall be set, as 6 R. Stat. § 131.205 forbids.
Cross Appeal. Where both parties are aggrieved, each shall file its own notice of appeal within the period prescribed by Rule 35(8)(a). The entry of an appeal by one party does not enlarge the period for the other.
Compensation of Appointed Counsel. The State Public Defender, an assistant public defender, and court-appointed counsel are compensated for legal services in an appellate proceeding arising from a criminal proceeding as 3 R. Stat. §§ 161.303 through 161.305 provide, and shall account for each hour billed and submit before the court an explanation of each billed hour as 3 R. Stat. § 161.306 requires. Costs upon an interlocutory appeal taken by the State are governed by Rule 15(4).
Proceedings After Rescript. Upon the entry of a rescript or an order of the Supreme Court, the trial judge shall proceed in conformity with it. A stay of execution allowed under Rule 31 automatically expires upon the release of a rescript affirming the conviction, unless extended by the Supreme Court.
No Separate Appellate Corpus. Appellate practice in a criminal proceeding is governed by these rules and by the Ridgeway Rules of the Supreme Court. No other body of appellate rules exists, and no cross-reference in these rules to any other body of appellate rules shall be given effect.