1. GETTING STARTED: Notices of appeal & the initial appellate documents

2. CRIMINAL VS. CIVIL APPEALS In certain respects, criminal and civil appeals are handled differently, such as the due date for filing the notice of appeal. Therefore, it is important to know whether your appeal will be treated as a criminal or civil appeal.

3. Criminal appeals include appeals from: (1) The judgment and sentence; (2) orders revoking supervised release; (3) orders entered pursuant to Fed. R. Crim. P. 35 (substantial assistance); and (4) orders entered on motions for sentencing modifications under 18 U.S.C. § 3582(c)(2) (retroactive sentencing guideline amendment). Civil appeals include appeals from post-conviction proceedings collaterally attacking a judgment (28 U.S.C. §§ 2241, 2254, 2255).

4. NOTICE OF APPEAL: THE BASICS Filing: Civil and Criminal Appeals are filed in the District Court, not the Court of Appeals. Contents: The notice of appeal must state: (1) the party taking the appeal: (2) the judgment or order being appealed; and (3) the Court to which the appeal is taken.

5. CRIMINAL APPEALS Due Date: 14 days from either: (1) the entry of the final judgment or order being appealed; or (2) the filing of the government’s notice of appeal. * “Entry” occurs when the clerk enters the judgment on the docket * Tolling Exception: If one of the following three motions is filed within 14 days from entry of the judgment, the time for filing the notice of appeal is tolled until 14 days after the disposition of the motion. 1. Motion for Judgment of Acquittal. Fed. R. Crim. P. 29. 2. Motion for New Trial. Fed. R. Crim. P. 33. 3. Motion for Arrest of Judgment. Fed. R. Crim. P. 34.

6. CRIMINAL APPEALS UNTIMELY NOTICE OF APPEAL The effect of an untimely notice of appeal depends on how untimely it is. Within 44 Days: The district court may extend the time for filing a notice of appeal up 30 days longer than the original 14-day period prescribed by the Rules upon a finding of good cause or excusable neglect. After 44 Days: An otherwise untimely notice of appeal does not divest the Court’s jurisdiction. United States v. Lopez, 562 F.3d 1309 (11th Cir. 2009). But if the government files a motion to dismiss as untimely, the appeal will be dismissed.

7. CRIMINAL APPEALS OTHER JURISDICTIONAL CONSIDERATIONS Generally, the filing of a notice of appeal divests the district court of jurisdiction other than matters relating to the appointment of counsel and bond. However, two motions the district court may still hear after a notice of appeal has been filed are: (1) a motion to correct a sentence under Fed. R. Crim. P. 35(a); and (2) a motion for indicative ruling under Fed. R. App. P. 12.1. Motion to Correct Sentence: Under Rule 35(a), within 14 days after sentencing, the district court may correct a clear error in a sentence such as an arithmetical or technical error. Motion for Indicative Ruling: If you have grounds for relief in the district court, but that court no longer has jurisdiction because a notice of appeal has been filed, you can file a motion asking the district court to state either: (1) it would grant the motion; or (2) that it raises a substantial issue. If it does, the appellate court can remand for further proceedings.

8. CIVIL APPEALS DUE DATE The U.S. is not a party (§ 2254): Within 30 days of the judgments entry. The U.S. is a party (§§ 2241, 2255): Within 60 days of the judgments entry. * “Entry” has a different and more complex meaning for civil appeals than criminal appeals. See Fed. R. App. P. 4(a)(7). Tolling Exception: If one of the 6 motions listed in Rule 4(a)(4) are filed, the time for filing a notice of appeal runs from the entry of the order disposing the motion. If the notice of appeal is filed prior to the disposition of one of these motions, the notice becomes effective when the notice is disposed of. If you want to appeal an order disposing one these motions you must state so in your notice of appeal, or if necessary, file an amended notice of appeal.

9. CIVIL APPEALS UNTIMELY NOTICE OF APPEAL 30 Days After the Deadline: The district court may extend the time for filing a notice of appeal upon a motion showing good cause or excusable neglect. No extension may exceed 30 days after the deadline or 14 days after the date when the order granting the extension is entered, whichever is later. More Than 30 Days After the Deadline: Unlike criminal cases, the failure to file a timely notice of appeal divests the appellate court of jurisdiction. Therefore, if the notice of appeal is untimely, the appeal will be dismissed.

10. CIVIL APPEALS CERTIFICATE OF APPEALABILITY A COA from either the district court or the Eleventh Circuit is required to appeal the denial of a §§ 2254 or 2255 motion. However, a COA is not required to appeal in § 2241 cases. The government may appeal without a COA. If a COA is not filed in the district court, the district court will construe the notice of appeal as a motion for a COA. The better practice is to file your motion for a COA and your notice of appeal in the district court at the same time. If the district court denies a COA, you have 14 days to file a motion for a COA in the Eleventh Circuit. The motion may not exceed the length authorized for an initial brief under Rule 32. Again, if no COA motion is filed, the Eleventh Circuit will construe the notice of appeal as a motion for a COA.

11. THE INITIAL PAPERWORK Once the appeal is docketed, the Clerk will issue a notice advising counsel that they have 14 days to file the following documents: (1) the appearance of counsel form; (2) a certificate of interested persons (CIP); (3) a corporate disclosure statement (web-based CIP); and (4) a transcript information form (TIF).

12. INITIAL DOCUMENTS APPEARANCE OF COUNSEL FORM The Eleventh Circuit provides an appearance of counsel form, which may be downloaded from its website. Court-appointed counsel need not file an appearance of counsel. However, the better practice is to file an appearance of counsel form in the Eleventh Circuit as well as a notice of appearance in the district court to ensure you are receiving notice of documents being filed in the case. If a case is scheduled for oral argument, a party must request leave of the Court to make and change in or addition to counsel. A case is “scheduled for oral argument” once the clerk has assigned the case to be heard on a specific day of the oral argument week.

13. INITIAL DOCUMENTS THE CIP AND WEB-BASED CIP The CIP is a complete list of all persons and entities known to have an interest in the outcome of the case. The CIP is designed in part to alert judges to possible conflicts of interest they may have. The Eleventh Circuit requires counsel to complete two types of CIP—the e-filed CIP and the web- based CIP. Both must be filed on the same day.

14. INITIAL DOCUMENTS THE CIP AND WEB-BASED CIP Web-Based CIP: The web-based CIP relates only to publically traded corporations interested in the appeal. In most criminal cases, there is not a corporation with an interest in the appeal, so you will typically indicate that nothing is reportable. E-filed CIP: Every motion, petition, brief, answer, response, and reply must include a, e-filed CIP. If the filing does not contain one, the clerk will not submit the document to the Court. However, if the CIP in the first brief/motion/petition is complete, counsel need only certify to that effect. The E-filed CIP must include all judges, attorneys, and entities with an interest in the case. In criminal cases, the CIP must also state the identity of any victims. The CIP must follow the cover page, and if there is no cover page, it must precede the text.

15. INITIAL DOCUMENTS THE TRANSCRIPT INFORMATION FORM The Appellant has the duty to order the necessary transcripts or notify the Court that none are needed. The TIF can be downloaded from the district court website and should be filed in both the district court and the Eleventh Circuit. Filing the TIF will not notify the Court reporter, so be sure to send him or her a copy. CJA Form 24: CJA counsel must also file CJA Form 24 in the district court. Best Practices: Speak with both the client and trial counsel to determine what issues are worth pursuing on appeal. Also, be sure to look at the minutes for each hearing for an indication as to whether a transcript of that hearing may be needed. Supplemental TIF: After the TIF is filed, if you need an additional transcript, file a supplemental TIF. If the last transcript has already been filed, file a motion to stay pending receipt of the needed transcript.