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.