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FREQUENTLY ASKED QUESTIONS

No. The SAPD and SPD are separate state agencies. Although they are both public defense offices and they try to support one another when they can, they have very distinct functions within Idaho’s criminal justice system. The SPD represents clients in Idaho’s trial courts (magistrate courts and district courts), while the SAPD represents clients in Idaho’s appellate courts (the Idaho Court of Appeals and the Idaho Supreme Court).

Generally, no. The SAPD only represents clients on appeal before the Idaho Court of Appeals and/or the Idaho Supreme Court. It does not represent clients in Idaho’s trial courts (magistrate courts or district courts). That work is handled by a different public defense office—the State Public Defender (SPD).

If you have been charged with a crime and are awaiting trial or sentencing, you may ask the judge to appoint the public defender to represent you. The judge may then require you to provide financial information showing you cannot afford to hire your own attorney. If the judge is satisfied that you qualify for a public defender, the SPD will be appointed to represent you. The SPD will then staff your case with one of its attorneys, or it may assign it to an outside attorney who contracts with the SPD.

Generally, no. The SAPD cannot provide legal services to non-clients.

An appeal is not a “do-over”; it is not an opportunity to submit new or additional evidence, or to ask a different court to re-weigh the evidence in the case. Rather, it is an opportunity to ask a higher court to review something that happened in the case—usually a legal ruling made by the trial court judge—to determine whether it was correct.

No. Appeals are decided by different courts. For example, if you were sentenced by a district judge, your appeal will be decided by the Idaho Court of Appeals or the Idaho Supreme Court. If your case goes before the Court of Appeals, it will be decided by a three-judge panel of Court of Appeals judges. If it goes before the Supreme Court, it will be decided by all five Supreme Court justices.

A Rule 35 motion is a request—made to the same court that imposed the sentence—to reduce your sentence as being too harsh, or to correct a sentence that is illegal on its face or was imposed in an illegal manner.

While a Rule 35 motion seeking a sentence reduction can serve a similar purpose to an appeal arguing the sentence was excessive and should be reduced, it is not the same thing as an appeal. They are distinct legal procedures. The Rule 35 motion is heard by the sentencing judge and thus serves as a motion to reconsider the sentence, whereas an appeal is heard by a higher court and serves as a review of the sentencing judge’s decision.

A post-conviction action is a separate civil case in which the defendant sues the state of Idaho asserting that his conviction and/or sentence was obtained in violation of the law. A post-conviction action is not a substitute for, or a do-over of, a direct appeal. Different claims are asserted in petitions for post-conviction relief than are asserted in direct appeals. For example, claims of ineffective assistance of counsel should be raised in post-conviction actions, not in direct appeals. That is because, in post-conviction actions, the introduction of new evidence such as affidavits or testimony regarding conversations you had with your counsel or any evidence that you believe should have been presented during your criminal case, is permitted, whereas such new evidence is not allowed to be presented in direct appeals. To obtain post-conviction relief, a petition for post-conviction relief must be filed in the trial court in the county in which the conviction was obtained.

Because a post-conviction case is not an “appeal,” but a separate civil action, the SAPD cannot file it for you. If you file a post-conviction petition, you can request the appointment of a public defender. If the court grants that request, it will appoint the SPD, not the SAPD.

If your post-conviction petition is dismissed or denied, you can appeal in the same manner that you can appeal from the judgment of conviction in your criminal case. If you seek the assistance of counsel in such a post-conviction appeal, and the trial judge determines that you qualify for appointed counsel, the SAPD will be appointed to represent you.

A notice of appeal is generally filed by the defendant’s trial counsel, but it may also be filed by the defendant (“pro se”) if necessary.

Notices of appeal are required to include a preliminary statement of issues. This preliminary statement, however, does not control or limit what issues may ultimately be argued in the appeal. Instead, the attorney handling the appeal will identify the meritorious issues in each case and determine which of those issues will be included in the appeal.

Most importantly, a notice of appeal should name the final judgment or order from which the appeal is taken, and it should specifically identify the transcripts and documents to be included in the appellate record.

The precise form of the notice of appeal is not critical; however, ideally, it should be substantially similar to the form provided by the Idaho Supreme Court in Idaho Appellate Rule 17(o).

A notice of appeal must be filed within 42 days of the date of the final judgment or order that you wish to appeal. The 42-day time limit is measured from the date of the file stamp on the judgment or order at issue.

Idaho Appellate Rule 11 identifies the final judgments/orders that may be appealed as a matter of right. These include (but are not limited to) judgments of conviction and orders on post-judgment motions.

In criminal cases, most rulings made prior to entry of the judgment of conviction (“interlocutory” orders), are not appealable as a matter of right. Usually, the defendant must wait until after he has been sentenced, and the judgment of conviction has been entered, before he may file his appeal.

In order to represent you on appeal, the SAPD must first be appointed by the district court. That means a motion for appointment of counsel, coupled with proof of indigency, should be provided to the district court. Usually, trial counsel will file a motion for appointment of the SAPD when they file the notice of appeal.

Once the SAPD has been appointed, it may take some time before a specific handling attorney is assigned to your case. That is because the SAPD does not assign a handling attorney until it receives the appellate record from the district court, which often takes some months. In the meantime, rest assured that you are represented, and that an attorney will be available to speak with you or address anything that comes up while we await receipt of the appellate record.

Although every case is different, the appellate process takes six months to a year on average. However, some cases—usually larger, more complex cases—can take significantly longer.

There are a couple of reasons why appeals move slowly. First, the process itself is slow. Second, proceedings in Idaho’s appellate courts tend to be much more deliberative than those in the district courts. Legal issues are usually researched more thoroughly and they are typically argued in much greater depth.

The SAPD will obtain a complete appellate record directly from the district court, so it is unlikely that your assigned attorney will need information or documents from you.

However, if there are specific issues that you would like your attorney to pay particular attention to while reviewing your case, please feel free to write the SAPD a letter identifying those issues. Having this information in advance, and in writing, will ensure that your attorney has a clear understanding of your specific concerns when they begin reviewing your case.

The appellate record, also known as the “transcript and record,” is an official record of the district court proceedings prepared by the court reporter(s) and the district court clerk. The contents of the appellate record will depend upon what was requested in the original notice of appeal, or in any subsequent amended notices of appeal.

No. An appellate court will generally only review those issues that have been “preserved” for appeal. This means that any issues presented in the appeal must have already been argued to, and addressed by, the district court. Typically, the appellate court will not address new issues raised for the first time on appeal.

No. The appellate court will limit its review to the information that was before the district court; it will not consider any new evidence or information.

No. The SAPD does not receive a copy of the discovery in any case. That is because the discovery generally is not filed with the trial court and, therefore, is not part of the appellate record.

If you want a copy of your discovery, you should contact the attorney who represented you in the trial court.

If you would like a copy of your file from the SAPD, please contact our office. Please note, however, that our office policy is to only provide one copy of the Transcript and Record.

Under the SAPD’s current records retention policy, all client files are maintained for at least five years following conclusion of the appeal. Beyond five years, there is a risk that your file may be destroyed.

Most appeals do not require any court appearances and are decided based on the parties’ written briefs. In a small number of appeals, however, the appellate court—whether it be the Court of Appeals or the Supreme Court—will hold an oral argument.

In a small number of appeals, the appellate court—whether it be the Court of Appeals or the Supreme Court—will hold an oral argument. The decision to hold an oral argument lies within the discretion of the appellate court. If the appellate court is willing to have an oral argument, the parties are notified and asked whether they believe oral argument will be useful. If they believe an oral argument will help to clarify the issues, the attorneys can request one. Regardless of whether the attorneys request an oral argument, the ultimate decision as to whether to hold one is decided by the appellate court.

If an oral argument is held, the parties’ attorneys are each allowed thirty minutes to argue. Only legal arguments are presented; no testimony or other evidence is permitted.

Incarcerated individuals are not transported for the oral arguments on appeal. Others, however, are welcome to attend, as oral arguments are open to the public.

The appellate court does not issue its decision during the oral argument; it simply takes the case “under advisement.” The parties must wait for the court to issue a written opinion deciding the case. The appellate court may take weeks or even months to issue a written opinion.

A brief is a written argument in support of, or in opposition to, whatever is being appealed. The appellant (the party who filed the appeal) will have 35 days to file the appellant’s brief. After the appellant’s brief is filed, the respondent is given 28 days to file a respondent’s brief. For either party, requests for extensions may be granted by the Idaho Supreme Court. Once the respondent’s brief is filed, the appellant has the option to file a reply brief. Because the reply brief is typically used only to clarify any facts or law which the appellant’s attorney believes the respondent inaccurately represented or to respond to unanticipated arguments from the respondent, it is not necessary in every case. Whether to file a reply brief is ultimately a tactical or strategic decision that must be made by the appellant’s attorney. If a reply brief is to be filed, the appellant has 21 days to file it. Just as with the other briefs though, the Court may grant extensions of time for the appellant to file the reply brief.

Extensions of time are common and do not affect the decision as to the merits of the appeal.

The SAPD’s goal is to request no more than two extensions of time to file a given brief. However, whether because of the SAPD’s large caseload generally, or because of the challenges associated with a particular case, SAPD attorneys sometimes seek three or more extensions of time.

While the decision of whether to grant any requested extension of time lies within the discretion of the Idaho Supreme Court, traditionally, the Supreme Court has granted attorneys the time they need.

The practical outcome of an appeal is highly dependent upon the issue(s) presented/argued on appeal. Thus, even if you “win” your appeal, the relief to which you will be entitled will depend on the nature of the claim upon which you prevailed. Unfortunately, there are very few legal claims that can result in a conviction being wiped out completely and an incarcerated defendant immediately being freed. More commonly, “winning” an appeal consists of the appellate court identifying some error by the trial court and “remanding” the case (sending it back) to the trial court to fix the error. Sometimes, fixing that error will require a new trial, a new sentencing hearing, or some other proceeding.

An “opinion” is a written decision issued by an appellate court. The opinion often explains the appellate court’s reasons for its ruling.

The Idaho Supreme Court website.

An appealable order issued by a trial court can be appealed once as a matter of right. However, if your appeal is assigned to the Court of Appeals and the Court of Appeals rules against you, you may file a “Petition for Review” requesting that the Idaho Supreme Court give your case another look.

A Petition for Review is a request to have the Idaho Supreme Court review a case that was already decided by the Idaho Court of Appeals. Therefore, Petitions for Review are only relevant to cases that are initially assigned to, and decided by, the Idaho Court of Appeals.

Technically, a Petition for Review is not an “appeal” of the Court of Appeals’ decision because the Supreme Court does not directly review the Court of Appeals’ decision. Practically speaking, however, it may serve that purpose. A Petition for Review typically asks the Supreme Court to review a case to clarify, change, or reject legal standards relied upon or adopted by the Court of Appeals, or to correctly apply existing legal standards misapplied by the Court of Appeals.

Once an opinion is issued by the Court of Appeals, both parties have 21 days to file a Petition for Review. If a Petition for Review is filed, a brief in support of that petition will sometimes be filed as well. That brief is due 14 days after the petition is filed; however, extensions may be granted for filing of the brief.

In determining whether to grant a Petition for Review, the Supreme Court will consider the factors outlined in Idaho Appellate Rule 118(b); however, the Court ultimately has wide discretion in deciding whether to grant review in a given case.

If a Petition for Review is granted by the Supreme Court, the Court typically schedules an oral argument. Thereafter, the Supreme Court will issue its own opinion in the case, which replaces the earlier Court of Appeals’ opinion.

If a case is heard initially by the Court of Appeals, a Petition for Review must be filed to “exhaust” state remedies and preserve federal issues for review in federal court.

A petition for rehearing is a request, made to the same appellate court that issued the opinion (either the Idaho Supreme Court or the Idaho Court of Appeals), to revisit the case and change its decision.

Once an opinion is issued by either the Idaho Supreme Court or the Idaho Court of Appeals, both parties have 21 days to file a Petition for Rehearing. If a Petition for Rehearing is filed, a brief in support of that petition will be filed as well. That brief is due 14 days after the petition is filed; however, extensions may be granted for filing of the brief.

If a Petition for Rehearing is denied by the Court of Appeals, a Petition for Review can be filed within 21 days of the denial of the Petition for Rehearing.

If neither a Petition for Rehearing, nor a Petition for Review, is filed within 21 days of the opinion, or if all petitions are denied, the Supreme Court will issue a “remittitur.” A remittitur formally concludes the appeal and instructs the district court to take any necessary action consistent with the opinion. The issuance of this document means that the appeal is completed, and that the appellate court’s opinion is final. It also means that the SAPD’s representation has drawn to a close.

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