How long is this appeal going to take?

Over my dozen years as a practicing appellate attorney, one of the questions I get asked the most is, “How long is this appeal going to take?” While any number of factors may ultimately impact the length of a given appeal, initially it can be helpful to understand the governing timelines, which vary across each stage of the appeal.

What I’m about to describe are the timelines involved in a felony “direct appeal” to the Colorado Court of Appeals—also called an “Appeal as of Right” in the appellate rules—which can differ from the timelines involved in other types of appeals and in other jurisdictions: misdemeanor appeals, juvenile appeals, and interlocutory appeals, just to name a few. Always check for the rules applicable to the type and jurisdiction of appeal for your individual case.

Notice of Appeal:

To perfect an appeal, you must begin by filing a “Notice of Appeal,” which generally is due 49 days after entry of the order or judgment you’re appealing. C.A.R. 3(a), 4(b). Although the rule affords you 49 days, you should be prepared to start working on your Notice of Appeal long before it is due because it requires substantial documentation, and you must also serve the lower court with an advisory copy of your Notice of Appeal within the same 49-day deadline. The notice of appeal must include the following:

1. A description of:
   • Nature of the case
   • Charges for which the defendant was tried
   • Charges for which the defendant was convicted
   • Date the judgment of conviction entered
   • Date sentence was imposed
   • The length and nature of the sentence imposed
   • Issues proposed to be raised on appeal
   • Whether an appeal bond was granted; and, if so, the amount of the bond
   • Attorney or party information

2. Attachments of the following documents:
   • A copy of the final order you are appealing
   • The mittimus (formal sentencing document)
   • Any order waiving the filing fees

Record on Appeal:

Unlike in the trial court, evidence may not be added during an appeal. Rather, your issues and arguments will be limited to the “Record on Appeal.” The Record on Appeal generally includes the case file, exhibits, orders, and transcripts. Gone are the days of the “Designation of Record.” Now, simply serving the trial court with a copy of your Notice of Appeal alerts the court that it must certify and transmit the Record on Appeal to the court of appeals. It is important to note, however, that in order for your Record on Appeal to contain transcripts, you must file a “Designation of Transcripts” in the trial court that specifically identifies the transcripts you need.

The trial court has 63 days to transmit the Record on Appeal to the court of appeals. C.A.R. 11(a). As with most things these days, it may take longer for the trial court to transmit the record, so don’t be surprised if you see extension requests from the district court in your case. You will know when the Record on Appeal is ready when the court of appeals issues the “Notice of Filing of Record on Appeal,” which may not occur until days or even weeks after the trial court transmits the record.

A direct appeal consists of two principal briefs, the Opening Brief and Answer Brief, and one optional brief, the Reply Brief. There are strict rules governing the format, length, and substance of each brief, so be sure to consult Colorado Appellate Rules 28 and 32 carefully before filing.

Opening Brief:

As the Appellant, you will file the Opening Brief, which is due 42 days after the date of the court of appeals’ Notice of Filing of Record. C.A.R. 28(g), 31(a). Principles of “preservation” and “standard of review” continue to shape the appellate landscape, so much so that the appellate rules now require you to address these topics in every issue raised in your Opening Brief.

Answer Brief:

In a criminal appeal, the Attorney General’s Office represents the Appellee, so that is who will be filing the Answer Brief in your case. The rule sets a 35-day deadline for the Answer Brief, but the Attorney General’s Office may receive an additional extension automatically depending on its caseload. C.A.R. 28(g), 31(a). The attorney general assigned to the case may also request additional time to be granted at the discretion of the court of appeals. Such extensions are often granted as a matter of course, though extensions beyond a certain length receive greater scrutiny.

Reply Brief:

After the Answer Brief is filed, the Appellant has an opportunity to file an optional Reply Brief responding to the arguments made in the Answer Brief. If a Reply Brief is to be filed, it must be done within 21 days of the Answer Brief. C.A.R. 28(g), 31(a). The court of appeals now requires both a table of contents and table of authorities in the Reply Brief, so plan accordingly.

Oral Argument is optional and granted in the discretion of the court of appeals. A request for Oral Argument must be filed within 7 days of the filing of the Answer Brief or the Reply Brief if a Reply Brief is filed. C.A.R. 34. While Oral Argument is granted at the discretion of the court of appeals, it is rare for an Oral Argument request to be denied in a felony direct appeal. Note that the rules also allow the Appellee to request oral argument. Although such requests are fairly rare in a felony direct appeal, it does happen on occasion.

After Oral Argument, or after the deadline has passed to file the Reply Brief, the case will stand submitted for a decision. In appellate courts, that decision comes in the form of a written “Opinion.” In the Colorado Court of Appeals, the judges sit in rotating “divisions” comprised of three judges.

There is no deadline for the court of appeals to reach a decision. Factors like caseload, an individual judge’s pace, and a global pandemic can all play a part in how long it takes to receive your Opinion. Other factors such as whether there is a dissent and whether the case is to be published may also increase the time. Opinions are released weekly on Thursdays. By checking the court of appeals’ website on a Wednesday afternoon, you can see whether your case is due to be released the following day.

There is no denying that winning a criminal appeal is an uphill battle. But working with an experienced appellate attorney can help you navigate the numerous substantive and procedural landmines that could derail your chances of persuading the court of appeals to grant you relief. Contact Britta Kruse at Meilstrup & Brown next time you need help litigating a felony direct appeal in Colorado.