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Sarah's Direct Appeal FAQs


Under Idaho law, both the State and a defendant have the right to appeal from certain types of judgments and orders in a criminal case.  While these appeals are tied to the issues that were litigated in the trial court, the appellate process can be very different from a trial.  In particular, appellate courts generally cannot find new facts, consider new evidence, or entertain new arguments if these were not raised in front of the trial court.  Because of that, an appeal is not like a do-over of the trial itself.  Here is some basic information that might be helpful to keep in mind about direct appeals in Idaho.


What is a direct appeal?


A direct appeal is a process through which a party asks a higher court to review the decisions made by the trial court in a particular case.  The main focus and purpose of this review is to determine whether the trial court was correct in its reasoning, procedure, and/or determination.  Even if there was some error by the trial court, part of the function of a direct appeal is also to determine whether this error had an impact on the case in a meaningful way.



What are the appellate courts in Idaho?


Idaho has two courts that are for appeals coming out of magistrate and district courts (the trial courts in Idaho): the Idaho Court of Appeals and the Idaho Supreme Court.  The Idaho Supreme Court is the highest Idaho state court, and its legal rulings are binding on all lower courts.  In addition, for misdemeanor criminal appeals there is an intermediate stage of the appellate process—the first step in a misdemeanor appeal is heard by the district court, and the district court's ruling thereafter may be appealed to the Idaho Supreme Court or Idaho Court of Appeals.



Who can appeal in a criminal case, and what rulings can be appealed as a matter of right?


As a general matter, you must be a party to an action in order to appeal a court's ruling.  In a criminal case, the parties to the action are the defendant who is charged with the offense, and the State of Idaho which is prosecuting the charge.  As appeal “as of right” means that a party is entitled to at least one stage of appellate review from a higher court.  In Idaho, statutes and court rules define what types of rulings can be appealed as of right.[i]


For both felonies and misdemeanors, a criminal defendant has the right to appeal from the following types of orders:

·         A final judgment of conviction (either upon a guilty plea or from a jury verdict of guilt)

·         An order denying a withheld judgment on a verdict or plea of guilty

·         An order denying a motion for a new trial

·         Any order after a judgment that affects the substantial rights of the defendant

·         Any other order for which the right to appeal is provided by statute

·         An order or judgment of contempt

The State also has the right to appeal from certain types of judgments and orders.  These include:

·         An order granting a withheld judgment on a verdict or plea of guilty

·         An order granting a motion to dismiss a complaint or information

·         Any other order or judgment, whatever its label, that terminates a criminal action over the State's objection; EXCEPT this does not authorize a State's appeal where the constitutional protection against Double Jeopardy would be violated if a new trial is ordered[ii]

·         Any order that reduces the criminal charge against a defendant over the State's objection

·         An order granting a defendant's motion to suppress

·         An order granting a motion for a new trial

·         Any order following a judgment that affects the substantial rights of the State


What types of issues can I raise on appeal?


Along the course of a criminal case, it is common for the trial court to enter a series of decisions that shape the issues and evidence that can be raised at trial.  But, depending on what type of order is being appealed from, the issues that can be raised on appeal might be more limited.  In other words, not every decision made by the trial court will always be something you can challenge on appeal.  The biggest factor in determining what issues you can raise on appeal is the nature of the order you are appealing from.  Some of the most common orders that are appealed by a defendant in a criminal case are discussed below.


Ø  Judgment of conviction following a guilty plea


Most guilty pleas in criminal cases are “unconditional” guilty pleas.  These are admissions to a criminal offense that waive the right to a whole host of rights, including both the right to trial and the rights to challenge prior rulings by the trial court without reserving the right to raise specific issues on appeal If a person enters an unconditional guilty plea, most issues on appeal are waived.[iii]  The remaining issues that are available on appeal from this type of guilty plea are usually related to sentencing.


Some guilty pleas do reserve the right to appeal from specific, prior decisions of the trial court.  These are typically referred to as “conditional” guilty pleas.  For these pleas, if a defendant raises a successful challenge on appeal to the trial court's ruling that is reserved in the agreement, the defendant typically can withdraw his or her guilty plea after the appeal is final.[iv]  Before a person can enter a conditional guilty plea, the defendant must get both consent of the prosecutor and approval of the trial court.[v]  Also, the agreement itself must contain what specific ruling can be appealed, and this must be put in writing and made part of the official record in the case.[vi]  A conditional guilty plea will be interpreted to allow an appeal of only those issues from the prior proceedings that are expressly reserved in writing.[vii] Because of this, it is important to be careful when crafting the language in any guilty plea that reserves the right to raise specific issues on appeal.


Ø  Judgment of conviction following a jury trial


Unlike a guilty plea, an appeal from a judgment of conviction following a jury or bench trial permits a defendant to appeal from most of the “adverse” rulings that the trial court made throughout the life of the case.  An adverse ruling is one where the district court made a decision that, in whole or in part, went against the position, argument, or request of that party.  This commonly includes things like rulings on motions to suppress evidence, rulings seeking to present or exclude evidence at trial, rulings made during the trial itself (such as the court's decisions on objections made by the parties, motions for mistrial or for judgment of acquittal, or requests for jury instructions), and sentencing decisions.


Even with a judgment of conviction following a trial, there are still limits on what issues may be raised.  As is discussed in the section below (see What issues can I raise on direct appeal?), another major factor for what issues can or cannot be raised is whether the issue was litigated at trial.  In addition, there are some issues where the trial itself is considered to “cure” any prior error—this is primarily the case for challenges to either the judge finding probable cause for the charge following a preliminary hearing or for any alleged defects in the grand jury process.  Under Idaho case law, the jury finding of guilt by a much higher standard of proof means that the appellate court will not review any of these types of errors if the defendant also received a fair trial.[viii]


Ø  Post-judgment rulings: motions for new trial, motions to reduce or modify sentence, orders relinquishing retained jurisdiction, probation revocation, and post-conviction petitions

If the appeal is only timely from a post-judgment decision or ruling, then the issues on appeal are generally limited to the merits of that ruling alone.  With limited exception, these appeals do not generally permit challenges to issues relating to the original judgment of conviction.  Some of the most common of these are: motions for a new trial, motions to modify or reduce a sentence, and any decision made by the trial court on a petition seeking post-conviction relief under the Uniform Post-Conviction Procedure Act. 


Appeals that are timely only from an order relinquishing jurisdiction (if the trial court retains jurisdiction at sentencing)[ix] can extend the time to appeal from the original judgment for challenges to the sentence only.[x]  But this does not extend the time to appeal for non-sentencing related issues.[xi]


If I want to appeal an issue or ruling that is not something I can appeal as a matter of right, is there a way to do that?


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]



Do I need an attorney to help me with my appeal?


The answer is almost always yes.  And here's why. 


For legal issues at trial, it is not always necessary to provide extensive case law in support of an argument (although it is certainly advisable to do so).  At the trial level, a party usually just needs to make their request or objection in a timely manner and clearly state the specific grounds for it.[xviii]  For legal issues on appeal, all of your claims must be supported by citations to the record of the case, argument, and legal authority.[xix]  This requires detailed, precise, and reflective work on even the simplest of appellate issues.


One of the biggest reasons why it is advisable to have the help of an experienced appellate attorney on a direct appeal is that every person who represents themselves on appeal (often called a “pro se” litigant or appellant) is held to exactly the same standard as an attorney would be when it comes to presenting his or her case on appeal.[xx] 


Even something as basic as a mistake in the process of putting together the record of what happened at trial can become, of itself, a reason for a party to lose on appeal.[xxi]  Another area that can be difficult for someone who is not an attorney is identifying which claims can and can't be raised on appeal.[xxii]  And, even if an unrepresented person puts together the record of proceedings they need and correctly identifies the proper issues, he or she may still lose the appeal if the arguments that they put together are not properly supported by the applicable legal authorities – citations to applicable statutes, court rules, constitutional provisions, and case law.[xxiii]


As one final matter, the time it takes to “perfect” an appeal—with all the preparation and effort involved in making a solid legal case—may itself be a strong reason to rely on an experienced lawyer who has the skills and knowledge to litigate the appeal in an efficient, effective way.


Can the court appoint an attorney to help me?


If you meet with the statutory definition of “indigence” for purposes of appeal, yes.  It is important to remember that indigence, in this context, means something specific—it doesn't necessarily mean that a person is in a state of extreme poverty or without any financial means.


Idaho, by statute, authorizes a trial court to appoint counsel in criminal appeals if the court finds that the defendant qualifies as indigent for purposes of an appeal.[xxiv]  The standard for whether a person qualifies for appointed counsel is whether he or she is unable to provide for the payment of counsel and all other necessary costs of representation.[xxv]  Some people are going to be presumed to qualify for appointed counsel - this includes those whose monthly income does not exceed one hundred eighty-seven percent (187%) of the federal poverty guidelines, who receive public assistance, or persons either housed in a correctional facility on a mental health facility.[xxvi]


While falling into any of these categories makes a person presumptively eligible for the appointment of counsel, these are not the exclusive means through which a person may show he or she qualifies.  Idaho Code § 19-854 states that the “court concerned may determine that persons other than those described in subsection (2) of this section are indigent persons.”[xxvii]  The statute lists other considerations such as income, property owned, outstanding financial obligations, the number of children or dependents in a household, or the costs of bail.  And even this list is not exhaustive.  The statute frames these factors as representative of the types of considerations that may be made, but the plain text of the statute makes clear than other factors that are salient to whether someone has the ability to pay for the full services of representation may also be considered.[xxviii]


When looking at whether a person may qualify for appointed counsel on appeal, more than just the costs for an attorney's time should be considered.  Unless counsel is appointed, at least in the initial stages of the case, a defendant who is appealing in a criminal case must also pay for the creation of a record on appeal.  Among the “other necessary expenses of representation” for an appeal is the requirement that a defendant pay for the fees associated with the creation of the Reporter's Transcript and the Clerk's Record up front, unless such person is represented by appointed counsel in a criminal appeal.[xxix]  The estimated fee for a Clerk's Record is $1.25 per page within the record; the Reporter's Fee is based upon the court reporters' own estimate but is presumed to be $200 in absence of that estimate.[xxx]  And if a defendant fails to pay for this record in a timely manner, the appeal itself is in danger of being dismissed.


For these reasons, a defendant in a criminal case who is considering an appeal may want to also think about whether he or she may qualify for appointed counsel, at least at the initiation of the appellate case. 


What if I want to retain private counsel on appeal, either from the outset or after an attorney has been appointed?


Just like a defendant at trial, a defendant in a criminal appeal also has the right to retain private counsel if he or she can afford to do so.  This can take the form of hiring an attorney from the outset of the appeal—which may be the only option for persons who do not qualify for appointed counsel but who want or need the help of an attorney.  But even those defendants who are originally appointed an attorney on appeal can hire private counsel thereafter.


There are some limits to this general rule.  Under the Idaho Appellate Rules, substitution of counsel can be made by filing a notice of substitution with the Idaho Supreme Court unless doing so would require any hearing or oral argument date to be vacated.  If the substitution occurs after this point in time, and would require the oral argument date to be delayed or otherwise vacated, a defendant needs to first seek permission from the Idaho Supreme Court for the substitution of counsel, and can only appear as counsel for the defendant on appeal if the Idaho Supreme Court grants this request and enters an order allowing it.[xxxi]


Because of this, if you are a criminal defendant who has appointed counsel on appeal but are considering whether to hire private counsel, it may be worth taking steps to try to find the right attorney early on in the appellate process.



If I want to file an appeal, what steps do I need to take?


If you want to appeal from a judgment or order that is appealable as of right, you must file a document called a “Notice of Appeal.”  With limited exception, the Notice of Appeal must be physically filed with the trial court within 42 days of the date stamp on the order being appealed.[xxxii]  If you want counsel to be appointed on appeal, a motion asking for the appointment of counsel on appeal should also be filed with the trial court.[xxxiii]


Usually, filing a Notice of Appeal is a fairly straightforward process for those who were represented by counsel in the trial court.  If you want to appeal from an order that you can appeal as of right, you should clearly inform your attorney of this fact, and do so before the time to appeal expires (the earlier the better).  Because you have the right to appeal certain orders in Idaho, your trial counsel does not get to decide whether or not to appeal.  This is your choice.[xxxiv]  Once you make a timely request of your trial counsel, “filing a notice of appeal is a purely ministerial task” for counsel to perform.[xxxv]  Because of this, you should be able to reasonably rely on the fact that trial counsel will file a timely notice of appeal once you have clearly told him or her that you want to appeal the trial court's decision.  However, to be safe, you should also keep in mind the date by which the Notice of Appeal must be filed and follow up with counsel to make sure the notice gets filed in time if you have any concerns.


Making sure that you file a Notice of Appeal on time is critical.  In Idaho, if a party fails to file the Notice of Appeal on time, this generally means that the party loses the right to appeal.  “The failure to physically file a notice of appeal” with the trial court within the time limits provided “shall cause automatic dismissal of such appeal,” either on a motion by a party or on the Idaho Supreme Court's own initiative.[xxxvi] 


If you do not have counsel at trial, or counsel withdraws before you requested that a Notice of Appeal be filed, you can always try to file one on your own.  Idaho Appellate Rule 17 governs the contents of a Notice of Appeal.  This Rule tells you the type of information that must be contained in a Notice of Appeal, and also includes the general format for this document.


How does the record at trial impact the issues on appeal?


Other than the type of order being appealed from, the record made in front of the trial court is almost always a defining factor when it comes to what issues can be raised on appeal.  There are also two primary ways that the record in front of the trial court establishes what issues can be properly raised: (1) the arguments that were made by the parties, and (2) the evidence that was put into the formal record for the trial court's consideration.  Failing to create a proper record on either of these two prongs can often mean that the issues you might otherwise wish to raise do not get full review on appeal.


 A central rule for Idaho's appellate courts is that, in order to be able to raise an issue on appeal, “both the issue and the party's position on the issue must be properly raised before the trial court.”[xxxvii]  This is sometimes referred to as the “preservation doctrine” or party preservation rule.  With very limited exception, if you or your counsel did not make a formal request or objection about the issue, the appellate court “will not consider issues raised for the first time on appeal.”[xxxviii]  That being said, appellate courts do permit an issue to “evolve” to a certain extent.  While the basic nature of the issue must be preserved by the parties at trial, a party can refine that argument with additional considerations or legal authority that are relevant to that claim.[xxxix]


The second aspect of the record on appeal that can determine what issues can be raised deals with the evidence that was put before the trial court in litigating a claim.  The Idaho Appellate Rules require that briefs on appeal contain more than just the legal arguments and citations to authority; these briefs also must include citations to the “parts of the transcript and record relied upon” for any claim of reversible error.[xl]  The Idaho Supreme Court has stated that it will not “search the record on appeal for unspecified error”; in absence of citations to the trial record, an appellate court will deem an issue waived.[xli] With very limited exception, the Idaho Supreme Court also will not second guess the rulings of the trial court on any issues of the weight of the evidence or credibility of witnesses.[xlii]


As a corollary to this requirement, Idaho appellate courts “will not consider an exhibit or evidence” that was “not a part of the record before the trial court.”[xliii]  Appellate courts in Idaho are not fact-finding tribunals; the function of the appellate court is to review claims of error relating to the findings, conclusions, and orders of the trial court based on the information presented to the court at that time.[xliv] 


One last, but important, consideration is making sure that the record on appeal reflects all the necessary documents, exhibits, filings, and transcripts from the trial court.  Even if you make a perfect record of your objections at trial, this record does not help your case if necessary portions of the record aren't integrated into the appellate record.  Checking the appellate record is important.  You cannot assume that every document you may need from the trial record will be automatically included in the Clerk's Record (the portion of the appellate record containing documents that are part of the trial record).  Idaho Appellate Rule 28 deals with the contents of a Clerk's Record.  The first portion of the rule contains a warning addressing the fact that a standard record may not include all the materials that are relevant and necessary for the appeal:


Parties are responsible for designating the documents which will comprise the clerk's record on appeal. The standard record described in subsection (b) is not designed to include many items (i.e., motions for summary judgment, affidavits, jury instructions, etc.) which may be pertinent to the appeal in a specific case.[xlv]


Because of this, you should always check and recheck what has been included in the Clerk's Record on appeal against the register of actions/case summary.[xlvi]  In addition, any of the transcripts that are needed for the appeal should also be requested in the Notice of Appeal.  If you are the appellant, it is your responsibility to identify and request production of any transcripts.


Creating a complete record on appeal matters because the failure to provide an adequate record, standing alone, may lead the appellate court to rule against you on appeal.   The Idaho Supreme Court has frequently held that: “It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. In the absence of an adequate record on appeal to support the appellant's claims, we will not presume error.”[xlvii]


What if I forgot to ask for a part of the trial record in my Notice of Appeal?  Is there a way to add to the record later on?


Yes, if you catch the missing portion of the record in time.  The Idaho Appellate Rules provide two primary mechanisms to allow you to expand the record and include any additional documents or transcripts that were not asked for in the Notice of Appeal.


The first comes after the initially requested transcripts and records are initially produced and “lodged.”  Under Idaho Appellate Rule 29, the parties have 28 days from the time when the clerk's record and transcript are lodged to file an objection to the record.  This can include “requests for corrections, additions or deletions” to the record that has been lodged.[xlviii]  If neither party objects to the record within that 28 day period, the appellate record is deemed “settled” and the appellate court will set a briefing schedule for the appeal.


The second way to add material to the appellate record is through a motion to augment under Idaho Appellate Rule 30.  This motion can be made at any time before the appellate court issues its opinion.  The specific information that must be included in these motions is set out within the rule, and Rule 30 also lays out the general format that should be used for these requests.


The request to augment (add) documents into the appellate record must either have the material attached or, if the documents are not in your possession, the motion must indicate where in the record the documents appear or where the trial court was presented them as part of the trial record.  For transcripts, if the transcript has not already been produced, you should identify for the appellate Court why the transcript is relevant along with the additional information required under Idaho Appellate Rule 30(a).


Transcripts in particular can take significant time to prepare, and a motion to augment does not automatically suspend the due dates for any of the briefing.  Idaho Appellate Rule 30(a) states that the “filing of a motion to augment shall not suspend or stay the appellate process or the briefing schedule.”  However, you can also file a combined motion to augment the record and to suspend the briefing schedule pending the lodging of a requested transcript.  This motion should include citations to Idaho Appellate Rule 30, as well as Idaho Appellate Rules 13.2 and 32 (which cover requests to suspend the appeal and other motions that are permitted under the appellate rules) and should be captioned in a way that clearly indicates you are asking both to augment the record and to suspend the briefing schedule on appeal.


What are the major steps and filings in an appellate case?


Each appeal can be different, but here are the common steps along the process of a direct appeal in a criminal case:


·         Notice of Appeal – this is the document that initiates the appeal and transfers jurisdiction from the trial court to the appellate court; mainly governed by Idaho Appellate Rule 17


·         Settling the record – this occurs once the Clerk's Record and any transcripts have been initially lodged with the appellate court and the parties; there is a 28 day period to review the record and make any objection.  Otherwise, the record is deemed settled if no one objects after the 28 days have elapsed.  See Idaho Appellate Rule 29


·         Setting the briefing schedule – after the appellate record is settled, the Idaho Supreme Court will issue a briefing schedule that includes the due dates for the Appellant's Brief, the Respondent's Brief, and any Reply Brief that may be filed in the case.  The timeline for filing the briefs is generally governed by Idaho Appellate Rule 34(c).


·         Briefs on appeal – the content and arrangement of the briefs on appeal is governed by Idaho Appellate Rule 35. 


o   Appellant's Brief – This is the initial set of written arguments in the appeal.  The statement of the issues presented defines the scope of what rulings are being challenged on appeal or what legal issues you are asking the appellate court to resolve.  The issues can be listed in a concise way and will be deemed to include “subsidiary” issues that are fairly included within the main issue.  You must also support these issues with argument, citations to the relevant portions of the record, and with legal authority.  The failure to raise an issue adequately in the initial Appellant's Brief may prevent you from addressing the claim in later proceedings (such as in a Reply Brief or at oral argument).  Because of this, if you are the Appellant, it is exceedingly important to make sure to frame your arguments within the Appellant's Brief with care, and with an eye towards completeness.


o   Respondent's Brief – In this brief, the party who is not the person appealing the order responds to any issues that were raised in the Appellant's Brief.  If there are serious deficiencies in the appellate record, briefing, or other significant procedural defects that may preclude the Appellant from being entitled to relief on appeal, those contentions must also be included within the Respondent's Brief.  Just as the Appellant, the Respondent is generally not permitted to raise new issues or arguments that were not included within the Respondent's Brief.  In addition, the claims or responses within this brief must be supported by argument, citation to the record, and legal authority.


o   Reply Brief – after the Respondent's Brief has been filed, the Appellant has the option of filing a Reply Brief to respond to the arguments made by the Respondent on appeal.


·         Court assignment – once the briefing of the parties has been submitted, these briefs will be considered by the Idaho Supreme Court to determine whether the Court wants to retain the case, or instead will assign the case to the Idaho Court of Appeals.  While this decision is discretionary with the Idaho Supreme Court, the general criteria that the Court applies to this decision on initial case assignment is set out in Idaho Appellate Rule 108.


·         Oral argument – this is the hearing where the parties may appear before the appellate court to discuss the arguments raised within the appeal and to answer any questions that the Court may have.  In Idaho, usually all of the members of the Idaho Supreme Court will be present for the oral argument and will deliberate on the decision in the case, although only one of the five Justices will write the main opinion.  The Idaho Court of Appeals sits on panels of three judges for each case.  Since there are four total members on the Idaho Court of Appeals, the specific Judges who will be part of the panel deciding the case rotate.  Oral argument is not strictly required in an appellate case, and may be waived by the parties or by order of the appellate court.  If oral argument is waived, then the panel who is deciding the case will deliberate and make its decision based on the briefing alone.


Each side is given 30 minutes total to present their arguments.  The Appellant goes first and, assuming there is any time remaining, may also present a rebuttal argument at the end.  The Respondent presents its oral argument after the initial presentation made by the Appellant.  The date and time for oral argument is set by the Idaho Supreme Court, and is usually provided to the parties at the same time as they are notified of the appellate court assignment.


·         Decision on appeal – after the oral argument (if any), the court will deliberate on the issues of the case and arguments of the parties, and one member of the Court will write the opinion that determines the merits of the claims.  There is no real rule of thumb for how long it will take for the appellate court to issue an opinion.  That being said, the time frame between argument and the release of the court's opinion may be significantly longer if it is a case with a complex record of the trial proceedings and/or multiple, nuanced issues. 


·         Remittitur – unless a petition for review or petition for rehearing is granted, the appellate decision usually becomes final 21 days after the opinion is released.  Once the opinion is final, the Clerk of the Supreme Court will issue a document called the “remittitur” with the trial court.  If the opinion reverses the trial court and/or directs the court to take additional action, the remittitur operates to transfer jurisdiction over the case back to the trial court.




What happens if I don't like the decision on appeal?


For direct appeals in Idaho state courts[xlix], there are still some options that may be available, but there are fairly specific criteria for when and how they apply.  The first potential option is a petition for rehearing, and the second potential option is a petition for review.[l]


·         What is a petition for rehearing?

A petition for rehearing is a request that is directed to the appellate court that issued the decision on appeal.  It asks the court to revisit or reconsider one or more aspects of that opinion.  Unlike a petition for review, the Idaho Appellate Rules do not set out any general criteria for granting a petition for rehearing.  However, these petitions are often filed when the appellate decision contains erroneous statements of law, erroneous statements regarding the appellate record of the case, or if the appellate court decides an issue (in whole or in part) on legal grounds outside of the arguments of the parties.  In addition, the criteria for the granting of a petition for review can provide some guidance for potential grounds for a petition for rehearing.[li]  The court that issued the appellate opinion will decide whether to grant rehearing.[lii] 


The petition for rehearing must be filed within 21 days of the filing of the appellate opinion.[liii]  A brief in support of the petition can be filed at the same time, or within 14 days of the filing of the petition for rehearing.[liv]  No response to the petition is permitted by the opposing party unless the appellate court permits a responsive brief.[lv]  If the court grants rehearing, the order will identify the issues being reheard, then set a briefing schedule on rehearing and schedule oral argument.[lvi]


·         What is a petition for review?

A petition for review is a request for the Idaho Supreme Court to take up an appeal after the Idaho Court of Appeals has issued an appellate decision in a case.[lvii]  A petition for review must be filed with the Idaho Supreme Court within 21 days of the issuance of the Idaho Court of Appeals opinion, order denying a petition for rehearing, or modification of the Idaho Court of Appeals' opinion without granting rehearing (whichever is later).[lviii]  A party is expressly permitted under the appellate rules to file a petition for review after or at the same time as a petition for rehearing with the Idaho Court of Appeals.  But if both petitions are filed at the same time, the Idaho Supreme Court will not take any action on the petition for review until after the petition for rehearing has been decided.[lix]


The Rule governing petitions for review also lays out the general criteria that the Idaho Supreme Court considers when deciding whether to grant review.[lx]  This includes: (1) whether the Court of Appeals decided an issue of law that has not previously been addressed by the Idaho Supreme Court; (2) whether the opinion from the Court of Appeals includes legal analysis that conflicts with prior decisions of the Idaho Supreme Court or the United States Supreme Court; (3) whether the Court of Appeals opinion conflicts with its own prior case law; (4) whether the opinion sanctions trial court procedures or is so inconsistent with acceptable judicial proceedings that it calls for the Idaho Supreme Court to exercise its supervisory powers over Idaho courts; and (5) whether the case involves issues where granting review is in the public interest or the interest of justice.[lxi]


The party seeking review must file a brief in support of this request within 14 days of filing the petition, and this brief must address the criteria for granting review.[lxii]  The opposing party is not permitted to file a response unless the Idaho Supreme Court grants them permission to do so.[lxiii]  If review is granted, the case proceeds on the briefing that was submitted previously to the Idaho Court of Appeals unless the Idaho Supreme Court orders otherwise.[lxiv]



If my issues are based on facts that are outside of the trial court record, what can I do to address these claims?


If a defendant may have additional legal challenges to his or her judgment of conviction or sentence, but these claims are based on evidence that is not in the trial record (i.e., information that was not presented to the trial court), then these claims generally must be raised in a petition seeking post-conviction relief[lxv] rather than a direct appeal.

[i] See Idaho Appellate Rule 11; Idaho Code § 19-2801.

[ii] This most commonly occurs when the defendant is acquitted on the factual merits of the case.

[iii] See, e.g., State v. Al-Kotrani, 141 Idaho 66, 69 (2004) (entry of an unconditional guilty plea waives all non-jurisdictional defects and/or defenses that arose in the prior proceedings).

[iv] Idaho Criminal Rule 11(a)(2).

[v] Id.

[vi] Id.

[vii] State v. Manzanares, 152 Idaho 410, 420 (2012).

[viii] See, e.g., State v. Mitchell, 104 Idaho 493, 500 (1983).

[ix] In a felony case, the trial court at sentencing has the option of suspending a defendant's sentence for up to 365 days and “retaining jurisdiction” over the case while the defendant is placed in the custody of the Idaho Department of Correction.  See Idaho Code § 19-2601.  During this period, the Department of Correction provides treatment and/or rehabilitative programming services and evaluates whether the defendant is a good candidate for probation.  Prior to the expiration of this 365 day period, the trial court must decide whether to place the defendant on probation, or otherwise order him or her to serve the sentence in prison.  Id.  If the trial court does not place the defendant on probation, the court is deemed to have “relinquished jurisdiction” over the defendant.  Id.

[x] See Idaho Appellate Rule 14(a).

[xi] See, e.g., Idaho Appellate Rule 14(a); Green v. State, 156 Idaho 722, 725-726 (Ct. App. 2014).

[xii] Idaho Appellate Rule 12.

[xiii] Idaho Power Company v. Idaho State Tax Comm'n, 172 Idaho 125, 675 n.1 (2023).

[xiv] Idaho Appellate Rule 12(a).

[xv] Id.

[xvi] Id.

[xvii] Idaho Appellate Rule 12(b), (c).

[xviii] See Idaho Rule of Evidence 103(a).

[xix] See, e.g., State v. Fox, 170 Idaho 846, 859 (2022).

[xx] See, e.g., Van Hook v. State, 170 Idaho 24, 28-29 (2022).

[xxi] See, e.g., Schenider v. Curry, 106 Idaho 264, 266-267 (Ct. App. 1984).

[xxii] See Van Hook, 170 Idaho at 28-29.

[xxiii] See, e.g., Walker v. Meyer, 170 Idaho 408, 412 (2021).

[xxiv] See Idaho Code § 19-5905.

[xxv] Idaho Code §§ 19-851, 19-852, and 19-854.

[xxvi] Idaho Code § 19-854(2).

[xxvii] Idaho Code § 19-854(3) (emphasis added). 

[xxviii] Id.

[xxix] See Idaho Appellate Rules 24 (d), (h); 27(c), (e). 

[xxx] Idaho Appellate Rule 24(c); 27(b).

[xxxi] Idaho Appellate Rule 45.

[xxxii] Idaho Appellate Rule 14(a)

[xxxiii] Idaho Appellate Rule 45.1

[xxxiv] See, e.g., Gosch v. State, 154 Idaho 71, 75 (Ct. App. 2012).

[xxxv] Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).

[xxxvi] Idaho Appellate Rule 21.

[xxxvii] See, e.g., State v. Hoskins, 165 Idaho 217, 221-222 (2019).

[xxxviii] Id.

[xxxix] Id. at 224.

[xl] Idaho Appellate Rule 35.

[xli] See, e.., Rodriquez v. State, 171 Idaho 634, 654 (2023).

[xlii] See, e.g., IDHW v. Doe (2023-25), 538 P.3d 805, 810 (2023).

[xliii] Eldridge v. Payette-Boise Water Users' Ass'n, 50 Idaho 347, 296 P. 1022, 1022 (1931).

[xliv] See, e.g., Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 92 (1991).

[xlv] Idaho Appellate Rule 28(a).

[xlvi] The register of actions or case summary is usually included within the standard clerk's record.  See Idaho Appellate Rule 28(b)(2)(B).  But, in order to save time and additional work, it is always advisable to check the case summary against the materials that will automatically be provided in a standard clerk's record before filing the Notice of Appeal.  If there are any additional documents listed within the case summary that will not otherwise be included in a standard record, and if these documents relate to potential issues on appeal, then best practice is to request each of these documents within the Notice of Appeal along with a request to produce a standard Clerk's Record.  In Idaho, case summaries are generally available through the iCourt portal, which can be found at this link:

[xlvii] Walker,  170 Idaho at 410 (quoting Turcott v. Estate of Bates, 165 Idho 183, 188 (2019)).

[xlviii] Idaho Appellate Rule 29.

[xlix] If the appeal is an intermediate appeal of a misdemeanor in front of the district court, then a party may appeal to the Idaho Supreme Court or Court of Appeals as of right.  See Idaho Appellate Rule 11(c)(10). 

[l] In addition, there is a process for the Idaho Supreme Court to grant review of an Idaho Court of Appeals decision on its own initiative even if neither of the parties files a petition for review.  See Idaho Appellate Rule 120.  However, this is an extraordinary process that may never have actually been invoked by the Idaho Supreme Court following the adoption of this Rule.

[li] See Idaho Appellate Rule 118.

[lii] See Idaho Appellate Rules 42, 116.

[liii] Idaho Appellate Rule 42.

[liv] Id.

[lv] Id.

[lvi] Id.

[lvii] See Idaho Appellate Rule 118.

[lviii] Id.

[lix] Id.

[lx] Idaho Appellate Rule 118(b).

[lxi] Id.

[lxii] Idaho Appellate Rule 118(a), (c).

[lxiii] Idaho Appellate Rule (c).

[lxiv] Id.

[lxv] See The Uniform Post-Conviction Procedure Act, Idaho Code §§ 19-4901 – 4911.

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