Appellate Representation

Overview

An appeal is a legal challenge of a trial court decision to a higher court. An appeal can also be made of a decision of a Department of Licensing hearing examiner related to an Implied Consent license suspension hearing. A person “convicted” of a crime in court, or subject to a license suspension following an Implied Consent hearing, may file an appeal. In some situations, the prosecutor or DOL may file an appeal to challenge a decision that dismissed a criminal charge or license suspension.

To start an appeal generally three things must occur:

(1) A written notice of the appeal must be filed in the appropriate court;

(2) A filing fee may have to be paid to start the appeal; and

(3) An appeal must be filed within a specific time period.

An appellate court can only do certain things. For example, an appellate court cannot hear a new evidence or testimony. An appeal is not a chance to “re-litigate” a case. Instead, an appellate court must review the record of a trial court or Implied Consent proceeding and decide if any legal errors occurred. An appellate court may either “affirm” the trial court or Department of Licensing ruling, or the appellate court may “reverse” the trial court or Department of Licensing ruling. Many rules dictate how an appellate court can decide whether a trial court or Department of Licensing ruling should be affirmed or reversed. In Washington State, based on the type of appeal that is filed, the appeal will be heard in either a county Superior Court, a division of the Court of Appeals, or the State Supreme Court. Our office handles appeal cases at all levels of the appellate court system.

Prosecutors and the Department of Licensing employ trained and experienced lawyers to handle appeals. That is why it is best to hire a lawyer who has the same training and experience to defend your rights on appeal as well.

Appeals from District and Municipal Courts

A person convicted of a misdemeanor or gross misdemeanor crime in a Municipal or District Court in the State of Washington has the right to file an appeal. A person who enters a guilty plea generally does not have a right to appeal. The limited ability to appeal under this circumstance is described further below.

An appeal must be filed in writing with the Municipal or District Court. The appeal must be filed within 30 days of the date the person was sentenced (i.e. punished). A copy of the appeal must be served on the prosecutor. No filing fee is required. However, at the conclusion of the appeal if the conviction is upheld the court may impose a nominal fee to cover the court's appeal costs.

Filing an appeal does not prevent the court's punishment from going into effect. If the trial court sentenced a person to jail, fines, and/or other conditions such as community service or treatment, the person must still fulfill these obligations. The person may, however, ask the court to “stay” the imposition of sentence. A “stay” means the sentencing conditions will not go into effect until the appeal is resolved. Typically, this issue should be addressed at the time of sentencing. For persons convicted of DUI or any traffic offense that results in a mandatory license suspension, the Washington Department of Licensing will “stay” imposition of a license suspension, revocation, or denial upon receiving notice that an appeal has been filed. Like other sentencing conditions, a stayed license suspension, revocation, or denial will go into effect later if the conviction is affirmed on appeal.

The appeal will be heard in the Superior Court of the county where the trial took place. The person filing the appeal (called “Appellant”) is required to do certain things:  (1) Make sure all the required documents and transcripts are filed with the Superior Court; (2) Write and file a brief that explains the legal errors in the case; and (3) Prepare for an “oral argument” before the Superior Court judge.

If the Appellant fails to do these things, in a timely manner, the Superior Court can dismiss the appeal. On appeal, the Superior Court reviews the record from the Municipal or District Court to determine whether any legal errors were made. The Superior Court reviews only the facts and arguments that were presented to the Municipal or District Court. Generally, no new facts or argument can be presented on appeal. The Superior Court judge will enter a written decision affirming or reversing the trial court conviction.

Both the person who filed the appeal and the prosecutor may appeal the Superior Court decision by filing a notice of discretionary review in the Court of Appeals.

Appeals from Department of Licensing (Implied Consent)

A person who is arrested by a police officer for suspicion of DUI may be asked to submit to breath or blood testing under the Washington State Implied Consent law. Should the Washington State Department of Licensing seek to suspend, revoke, or deny a person's driving privileges under this law, the person has the right to have a hearing before a Washington State Department of Licensing hearing examiner to contest the suspension, revocation, or denial. Should the Department of Licensing affirm the suspension, revocation, or denial, the person has the right to appeal this ruling to the Superior Court. You can read more about the hearing process here.

An appeal must be filed in the Superior Court for the county where the arrest occurred. The appeal must be filed within 30 days of receipt of the Department of Licensing's “final order” which advises the driver of the suspension, revocation, or denial. The appeal must be filed in writing and a copy of the appeal must be served on the Department of Licensing. The Superior Court will require payment of a filing fee, unless the fee is waived. You must file a separate motion to ask to waive the filing fee.

Once the appeal is filed the person (called “Appellant”) is required to do certain things: (1) Make sure all the required documents and transcripts are filed with the Superior Court; (2) Write and file a brief that explains the legal errors in the case; and (3) Prepare for an “oral argument” before the Superior Court judge.  If the Appellant fails to do these things, in a timely manner, the Superior Court can dismiss the appeal.

Filing an appeal does not prevent the suspension, revocation, or denial from going into effect. Once the appeal is filed the person may ask the Superior Court judge to “stay” the suspension, revocation, or denial. A “stay” means the suspension, revocation, or denial will not go into effect until the appeal is resolved. The person must file a separate motion and declaration with the Court, serve a copy on the Department of Licensing, and in most Courts schedule a hearing before the judge. To grant a “stay,” the person must establish (1) he or she is likely to prevail on the appeal, and (2) he or she suffers irreparable injury with a suspended, revoked, or denied driving privilege.

Under a 2009 law, a person subject to a suspension, revocation, or denial of driving privileges under the Washington State Implied Consent Law may seek an Ignition Interlock Driver's License after the Implied Consent hearing. This license allows a person to continue driving even though their regular license is suspended, revoked, or denied. However, this 2009 law stated that to qualify for this license the person  had to “waive” the right to appeal. However, in the recent appeal Nielsen v. Department of Licensing, a case argued by attorney Ryan Robertson, the Court of Appeals has ruled that the requirement to waive the right of appeal to receive the Ignition Interlock Driver's License is unconstitutional; meaning a person should be able to file the appeal and obtain an Ignition Interlock Driver's License at the same time. This means, a person who files an appeal should be able to drive with an ignition interlock license while the appeal is pending.

On appeal, the Superior Court reviews the record of the hearing held before the Department of Licensing hearing examiner to determine whether any legal errors were made. The Superior Court reviews only the facts and arguments that were presented to the hearing examiner. Generally, no new facts or argument can be presented on appeal. The Superior Court judge will enter a written decision either affirming or reversing the hearing examiner's ruling.

Both the person who filed the appeal and the Department of Licensing may appeal the Superior Court decision by filing a notice of discretionary review in the Court of Appeals.

Appeals from Superior Court

A person convicted of a felony or misdemeanor or gross misdemeanor crime in a Superior Court in the State of Washington has the right to appeal the conviction. A person who enters a guilty plea generally does not have a right to appeal. The limited ability to appeal after a guilty plea is described further below.

An appeal must be filed in writing with the Superior Court. The appeal must be filed within 30 days of the date the person was sentenced (i.e. punished). A copy of the appeal must be served on the prosecutor. A filing fee may be required. Filing an appeal does not prevent the court's punishment from going into effect. If the trial court sentenced the person to jail or prison, fines, or other conditions such as community service or treatment, the person must fulfill these obligations. The person may, however, ask the court to “stay” the imposition of sentence. A “stay” means the sentencing conditions will not go into effect until the appeal is resolved. Typically, this issue should be addressed at the time of sentencing. Unlike convictions appealed in the Municipal or District Courts, in certain cases in the Superior Court it is not possible to “stay” imposition of sentence. A person convicted of certain sex crimes and violent offenses are ineligible to have the sentence “stayed” on appeal. In any case where a “stay” is sought, the judge must make certain findings related to the case to determine if a “stay” is appropriate. In most cases where there is a felony conviction the Superior Court will require the person to file an appeal bond to secure their release from jail or prison while the appeal is pending.

The appeal, in most cases, will be heard in the Court of Appeals. There are three divisions of the Court of Appeals; located in Seattle, Tacoma, and Spokane. The location of the Superior Court will determine which division will hear the appeal. Appeals from counties north of King County are filed in Division One (Seattle). Appeals from counties south and west of Pierce County are filed in Division Two (Tacoma). Appeals from counties in Eastern Washington are filed in Division Three (Spokane). In some cases the appeal may be heard directly in the State Supreme Court, which is located in Olympia.

The person who files the appeal (called “Appellant”) is required to do certain things: (1) Make sure all the required documents and transcripts are filed with the Court of Appeals; (2) Write and file a brief that explains the legal errors in the case; and (3) Prepare for an “oral argument” before the Court of Appeals.  If the Appellant fails to do these things, in a timely manner, the Court of Appeals can dismiss the appeal. On appeal, the Court of Appeals reviews the record from the trial court to determine whether any errors were made in the findings and/or legal conclusions made by the trial court judge or jury. The Court of Appeals reviews only the facts and arguments that were presented to the trial court. Generally, no new facts or argument can be presented on appeal. The appeal will be decided by a three judge panel in the Court of Appeals. The Court of Appeals will enter a decision either affirming or reversing the Superior Court conviction. The decision will be in writing, and may be “published” by the Court and become legally binding authority throughout the State of Washington. Both the person who filed the appeal and the prosecutor may appeal the Court of Appeals' decision by filing a petition for review in the Washington State Supreme Court.

Discretionary Appeals to the Court of Appeals

In the event a person loses an appeal filed in the Superior Court based on a conviction from the Municipal or District Court, or license suspension, revocation, or denial from the Department of Licensing, he or she has the opportunity to seek discretionary review in the Court of Appeals. The appeal must be filed in the Superior Court. The appeal must be filed within 30 days of receipt of the Superior Court ruling. The appeal must be filed in writing and a copy of the appeal must be served on the prosecutor or Department of Licensing. The person must pay a filing fee to the Superior Court, which is paid in the Superior Court, unless the fee is waived. You must file a separate motion to ask to waive the filing fee.

A discretionary appeal to the Court of Appeals is just that; discretionary. That means the Court of Appeals may reject the appeal request. To be granted the right of appeal, the person filing the appeal must establish a basis for the Court to accept the appeal. The Court of Appeals will accept an appeal only when it is proven that one of the followings conditions exists in the case: (1) The Superior Court decision conflicts with a prior Supreme Court or Court of Appeals decision; (2) The case involves a significant question under the Washington State Constitution or the United States Constitution; (3) The case involves an issue of public interest; or (4) the Superior Court departed from accepted or usual procedures, or sanctioned the Municipal or District Court or Department of Licensing in departing from accepted or usual procedures, in making a decision such that review is warranted. To establish that one of these criteria exist, the Appellant must write and file a brief that specifically addresses these criteria. If the Court of Appeals finds that granting an appeal is warranted, the case will proceed on appeal in the manner described under Appeals from Superior Court (above).

Appeals to State Supreme Court

If a person seeks to appeal a decision to the Washington State Supreme Court, the appeal must be filed in the Court of Appeals. The appeal must be filed within 30 days of receipt of the Court of Appeals decision. The appeal must be filed in writing and a copy of the appeal must be served on the prosecutor or Department of Licensing. The person must pay a filing fee to the Court of Appeals, unless the fee is waived. You must file a separate motion to ask to waive the filing fee.

The Washington State Supreme Court will only review certain types of cases. Like discretionary appeals described above, the Supreme Court will use discretion to decide which cases to accept for consideration. For most cases, the Court will use the following factors to decide whether to review a particular case: (1) Does the decision from the Court of Appeals (see above) conflict with a prior decision of the Supreme Court or Court of Appeals; (2) does the case present a significant question under the Washington State Constitution or the United States Constitution; or (3) does the case involve an issue of substantial public interest that be decided by the Supreme Court? To establish that one of these criteria exist, the Appellant must write and file a brief that specifically addresses these criteria.

Once the Supreme Court decides to accept a case for review, the case will be set for oral argument before the full panel of nine Supreme Court Justices. Argument will be held in Temple of Justice in Olympia. However, on accession the Supreme Court will schedule arguments in other locations throughout the State. The Supreme Court will enter a decision either affirming or reversing the conviction or license suspension, revocation, or denial. The decision will be in writing, and will be “published” by the Court and become legally binding authority throughout the State of Washington.

Personal Restraint Petition

A Personal Restraint Petition (“PRP”) is a unique type of appellate procedure. A PRP is modeled after the “habeas corpus” procedure under federal law. In Washington State, a person who uses the PRP procedure must prove two essential elements: (1) He or she is under a “restraint” such as prison, bail, or a recognized restriction on his or her “liberty interest;” and (2) Such restraint is illegal. A PRP typically must be filed no more than one year after the illegal restraint commenced. However, there are exceptions.

A person filing a PRP typically files the PRP petition in the Court of Appeals, but in some circumstances it may be filed in the Superior Court. The petition must be filed in writing and a copy must be served on the prosecutor or entity that is responsible for the illegal restraint. The person must pay a filing fee to the Court of Appeals, unless the fee is waived. You must file a separate motion to ask to waive the filing fee. A PRP is considered a “collateral attack” to a conviction or some other action by the State that results in the illegal restraint. Typically, a PRP is filed once a person has exhausted all other appeal options, like the ones described above. As mentioned above, in circumstances where a person has entered a guilty plea the PRP is the only method of appeal available.

A key distinction between a PRP and the appeals procedures described above is that in a PRP the person may be able to present new evidence and/or arguments to support their claim of an illegal restraint. For example, a person may present newly discovered evidence, or may claim that his or her attorney provided ineffective assistance at trial.

The Court of Appeals may reject a PRP petition, may send the matter to the trial court for to review the petition, or may schedule argument to determine whether the PRP should be granted. If the Court of Appeals issues a decision on the PRP, it will be in writing and may be “published” by the Court and become legally binding authority throughout the State of Washington. Both the person who filed the PRP petition and the party responsible for the alleged illegal restraint may appeal the Court of Appeals' decision by filing a petition for review in the Washington State Supreme Court.

Robertson Law

Robertson-law-logo

The attorneys of Robertson Law have a proven track record of creative and effective advocacy for clients throughout the state of Washington.

Contact Us Today!

Andy Robertson has a proven track record of creative and effective advocacy for clients facing criminal charges throughout the state of Washington. Ryan Robertson's practice focuses exclusively on high-quality creative appellate representation in criminal and administrative matters, as well as expungements, vacation of records, and petitions to seal.