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Hiring an Appellate Attorney is Important


Just because you received a guilty verdict doesn’t mean it’s the end of the road for you. However, the best thing you can do for your case is to hire an attorney experienced in appellate advocacy. Frequently, I see appealable cases that are dismissed due to egregious attorney errors and ultimately leave the client suffering.

One common mistake I often see in appellate law is not knowing or following the correct deadline for filing an appeal. It’s important to note that there are rigid guidelines and procedures one must adhere to in order to file an appeal.

Once an appeal passes the deadline for filing, it will no longer be considered by the appellate court. This issue is addressed in a criminal proceeding that arose out of Jefferson County, Alabama, in the case of Ex Parte Holderfield (In re: Holderfield v. State of Alabama).

Here, the defendant, Amanda Holderfield (“Holderfield”), was convicted of second-degree assault. On April 7, 2015, Holderfield was sentenced to 60-months’ imprisonment; that order was suspended, and Holderfield was ordered three years of supervised probation. In addition, Holderfield was ordered to pay restitution in the amount of $2,219 to the “City of Gardendale Municipal Works Comp Fund.”

Restitution is the money paid back to the victim from the offender of a convicted crime. A restitution hearing acts a compensatory function to allow the victim to be awarded for any monetary damages that were sustained from the crime. Restitution may be ordered for destroyed property, travel expenses, medical expenses, burial expenses, and even loss wages.

On May 6, 2015, Holderfield filed a “Motion to Set Aside Order of Restitution and Request Hearing.” On June 15, 2013, the circuit court denied the motion. Accordingly, Holderfield appealed to the Alabama Court of Criminal Appeals.

The Alabama Court of Criminal Appeals dismissed the appeal. The Alabama Court of Criminal Appeals reasoned that the appeal was untimely and not filed within the mandatory 42 days Rule 4(b)(1), Ala. R. App. P., calls for. Specifically, the appellate court dismissed the motion to set aside the restitution on the basis that the motion was not equivalent to Rule 24.1, Ala. R. Crim. P., motion for a new trial; thus, there was no tolling on the time to file an appeal. Rule 4(b)(1), Ala. R. App. P., states that notice of appeal by a defendant in a criminal proceeding must be filed within 42 days of the announcement of the sentence.

Since 42 days had passed before the appeal was filed, the appellate court ruled that they lacked the jurisdiction to review the trial court’s order and dismissed the case. Following the dismissal, Holderfield appealed the judgment to the Alabama Supreme Court.

The main issue before the Alabama Supreme Court is whether a motion to modify or to set aside restitution order in a criminal case should be treated as a motion for a new trial under Rule 24.1, Ala. R. Crim. P., with regard to tolling the time to file an appeal. Remember, Holderfield did not entitle her motion as a motion for new trial but entitled her motion as a “Motion to Set Aside Order of Restitution and Request Hearing.”

The Supreme Court of Alabama specifically references Ex parte Hitt, in which the Alabama Supreme Court held that motions to amend or correct a sentence are govern by Rule 24.1, Ala. R. Crim. P., and that filing of such a motion tolls the time to file an appeal. Ex parte Hitt, 778 So. 2d 159 (Ala. 2000).

The Alabama Supreme Court held that the motion to modify or set aside restitution was considered a motion to amend or correct a sentence; therefore, the time to file an appeal was tolled. The Alabama Supreme Court ruled that the appeal was not untimely, and the Criminal Court of Appeals should not have dismissed the case.

Fortunately for Holderfield, the appeal was not deemed untimely. Appeals are too costly and time sensitive for small mistakes to happen. To ensure that your appeal is being handled properly, seek out an attorney who is well-versed in appellate procedure.

If you are considering filing an appeal in your case, contact Birmingham appellate attorney, Joseph A. Ingram at (205) 335-2640.

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