The short answer is yes, but such appeals are very rare. It generally must be an exceptional case for the Idaho Supreme Court to grant special permission to appeal a ruling that is not otherwise appealable as a matter of right.
The Idaho Appellate Rules have a mechanism through which a party can seek to file a permissive appeal (sometimes called an “interlocutory” appeal). [xii] However, it is very rare that the Idaho Supreme Court will grant permission for these appeals. The Court has stated that it will grant a permissive appeal under “exceptional circumstances,” and when the criteria for these appeals have been met under the appellate rules. [xiii]
First, the order that a person is seeking to appeal by permission has to be an order that is “otherwise not appealable” as a matter of right. [xiv] (See “Who can appeal in a criminal case, and what rulings can be appealed as a matter of right?” above). Second, the order must be one that “involves a controlling question of law.” [xv] This means, essentially, that the core of the issue that a person is seeking to appeal cannot be a dispute that involves a challenge to what facts the trial court found or how the trial court weighed the credibility of the evidence on an issue. Instead, the party must be seeking to challenge the law that the trial court relied on to resolve the disputed claim, or otherwise clarify what legal standards should be applied.
Third, there must be “substantial grounds for difference of opinion” on the question of law involved in the request for permissive appeal. [xvi] In most cases, this would involve either an area of law that Idaho cases, statutes, or court rules haven’t addressed yet (also called an issue “of first impression”) or the application of one or more rules of law in a context that is somewhat novel. Last, the person seeking permission to appeal has to establish that an immediate appeal would be likely to materially advance to resolution of the case.
Most of the issues that arise in a criminal case generally can be addressed following a trial through the traditional direct appeal process. Because of this, appellate courts have frequently stated that there must be both significant legal issues involved and a “very compelling” case to address them before a request for permissive appeal will be granted.
Even if a ruling meets with the standard for when a permissive appeal is appropriate, the person seeking review still must follow the specific procedures set out by court rules for permissive appeals. Otherwise, the permissive appeal may be dismissed or denied. [xvii]