Thats weird. To me the first 9 posts just say guest with no name. As if he never existed.
Look at the post directly above yours.:o
I know the thread is old, but for reference, the federal constitution does not mandate a right to appeal. I have this case in my notes to illustrate it.
IF a state permits appeals, the appeal must conform to Due Process.
Historically and more well known this is true, but Brown did not actually overturn Plessy, but an earlier education case of another name.
I disagree, you have a right to appeal, however, the grant of Certiorari is NOT a right, but discretionary.
Regardless of any inferior court application of the 7th, the US SC has never applied the 7the to the states, even in civil cases, but in criminal trials, the 7th is meaningless.
There is no appeal from a not guilty verdict. What could possibly happen, is, say some jurors were bribed, resulting in an aquittal. If discovered the state could move (Motion) to vacate the decision, or such, that is not an appeal though.
When you say you have a “right to appeal,” the understanding of that term in jurisprudence is that the court you are appealing to must address your appeal. Otherwise, all you’re really saying is that you have a right to file a piece of paper, which is rather trivial. So, it trivializes the concept of “right” to call this a right.
The term RIGHT means just that, you can not be denied, as you say, filing a piece of paper, as long as the rules of Appellate procedure are bound by.
On a state level, at least here, in Ohio, the Appeals court must hear it, but the state SC can decline review, period. This seems true in other states also as reading various US SC decisions, Certiorari was granted from a state appeals court as the SC there declined review.
A few states though have NO intermediate appeals courts, the court of last resort is the state SC.
That’s not what “right to appeal” means. It means you have a right to have your appeal considered by the court and disposed of substantively.
In the federal system you have a “right to appeal” to a federal appeals court. You do not have a “right of appeal” to the Supreme Court. Yes, anyone can file a petition for a writ of certiorari. But so long as the court has the authority to refuse to issue such a writ, you do not have a “right to appeal.”
This is like the difference between a Right of Action and a Cause of Action.
Again, filing an appeal, whether you use the words “Right to” or “Right of”, can not be denied, we agree on that.
Actually, the words matter. The word “right” when used with “appeal” is a term of art in law.
I realized its from 99. Old threads usually have some banned members and names from the past. This is the first time I have seen posts with no name at all.
It was a flitch in the software when SDMB went from ubb to vboard - some of the really old threads lost their poster names.
I meant the words OF or TO, not the word Right itself.
I have this case in my notes, quoting from Durham v. United States, 401 US 481;
- It is suggested that Crooker is different because it involved a right of appeal, while here we deal with a petition for a writ of certiorari. It is, of course, true that appeals are a matter of right while decisions on certiorari petitions are wholly discretionary. Congress, however, has given a right to petition for certiorari and petitioner exercised that right.
Are you a law student? You certainly sound like one.
And no, the case you mention does not deal with what you claim it did. In it the Petitioner had died during the pendency of his Petition and the question was did it abate the proceedings in the Courts below. The answer was, as the conviction had not achieved finality, yes it did as all judicial remedies had not been exhausted.
What you are doing is mixing up the availability of a Judicial remedy with a right to appeal (and no this is not being pedantic or splitting hairs). An appeal by necessity implies that the Appellate Forum must consider and matter on merits. A Judicial Remedy on the other hand just means you can take a matter to a higher forum. The higher forum can (and usually does) tell you to get lost without even granting you any hearing. I don’t think you will ever hear any practitioner taking the stand that where review is discretionary, its a right of appeal.
You know, in view of the fact that the line you quote is from a 12-year-old post of mine, in which I clearly distinguish between: (a) the legalese and the loose public usages of “appeal”, and (b) appeal sensu stricto and certiorari, I get the distinct feeling you are critiquing my post simply to practice oneupsmanship.
If I have a right to/of appeal, I am able to constrain a higher court to review the decision, or some aspect of the decision, of a lower one. This contrasts with the petition for a writ of certiorari, in which the constraining is totally on the part of the higher court and I am a humble petitioner whose petition may be rejected for any or no reason. There’s an unsuble distinction at justice there.
And in any case there are clear and distinct legal consequences to the refusal of leave or certiorari and the dismissal of appael. Where a petition is dismissed, the lower courts decision attains finality and the dismissal does not create precedent. If an appeal is dismissed the final judgement is that of the higher court and it does create precedent. If what lawbuff is saying is correct, then every refusal of leave or certiorari is a precedent creator.
So… you have a “right to appeal” as in you have a right to file a paper saying why you should be either re-tried or let off (or on the government side, re-tried)?
I assume this does not mean the appeal court MUST have a hearing on it? I read about a lot of appeals that are simply denied in writing on declined to be heard.
Who reads the paper and who says yea or nay to the appeal? At least one of the appeal court judges, or is this left to their assistants to weed out the obvious “not worth hearing” in their slush pile? Or does this vary from state to state?
To repeat. There are two major types of appeals. Appeals which are as of right where the Appellate Court must at least consider the validity of your grounds as to why the Court below erred and discretionary appeals, where the Appellate Court chooses whether or not to hear your case. As stated above, there are distinct legal remedies with different results.
With respect to appeals as of right, the Court must generally grant the parties a hearing, although certain types of appeals (usually simple matters) might be disposable just on the briefs. Now please recall that appeals are not usually rehearings, the Appellate Court will not look at it afresh, rather they will review whether the Trial Court erred and usually the Appellant in their Appellate brief has to specify exactly why the lower court erred and why the decision should be set aside. Several Appellate Courts have procedures whereby they screen out the hopeless and frivilous cases these vary according the jurisdiction.
On the case of discretionary review, the procedures again vary. In the SCOTUS the matters are disposed off on papers, (4/9 judges need to agree to hear a case). Other countries give the parties a short oral hearing to convince the Court to take up the case. It should also be emphasized that merely arguing that the decision of the Courts below was wrong will not get you very far, you need to show the Court in discretionary review that the case raises an issue of law of general public importance and many if not most petition will invariably fail that test. If there are a plethora of judgements of lower appellate courts or the High Court that on a certain issue, then the Court is not likely to touch it. OTH if it relates to a new statute or the judgements of the lower Courts are at variance, then the might take it. The procedure for how a Court decides to take on a case also varies world over.
No, I am not.
I know we were not discussing abatement, I simply cited the case to provide the internal citation. If you think it does not apply, fine.