A domestic violence restraining order was issued after trial against my son. When we appeared for the trial, the attorney that we had hired never showed up. We asked for a continuance, which the judge denied.
During the trial both the petitioner and her witness- her father- testified that they had never been through this before and didn't know how to question her witness. We have now found out that the petitioner had applied for a dv restraining order against her own witness, who is now the supervising party for visitation. They both perjured themselves on the stand, the petitioner has filed for multiple restraining orders in the last few years.
Is either the denial of a continuance so th defendant could find out why his attorney didn't show up, or the perjury grounds for an appeal?
Criminal Defense Attorney
The first and most important question is WHEN was the order issued? You have a limited amount of time in which to file a notice of appeal in a case such as this. If you blow the deadline and file a notice of appeal late, it is extremely difficult if not impossible to appeal your case.
Assuming you are still in time to file a notice of appeal, it sounds to me like you have at least one solid issue to go on, and, if the case was to be looked into, there is a chance you have more issues and do not even realize it. If you are interested in pursuing an appeal, you would be wise to engage competent appellate counsel to do so, as appellate law and procedure contain many traps for the uninitiated.
For instance, the one thing that most people fail to understand about an appeal is that an appeal is NOT a new trial. The appellate court does not hear from witnesses or receive new documentary evidence. Unless you represent yourself on appeal (again a VERY UNWISE thing to do) you will not even personally address the court - your lawyer will. This is because, generally, an appellate court does not reweigh the facts on appeal - that is, the appellate court will not look at a case and say that the trial court "got it wrong" because one of the witness was lying, (no matter how implausible their testimony might be). An appellate court generally does not sit as a "13th juror" (or in your case as a second judge of the facts) if you will.
Well, then, what DOES an appellate court do? It reviews the trial court's records (generally speaking, this consists of the papers that were filed with the court clerk and the word-for-word transcript of the hearing) for "legal error." That is, for example, did the judge allow testimony or evidence to be admitted that should have been excluded? Did the judge misapply a legal standard, statute, or precedent case? Taking the facts in the light most favorable to the party NOT appealing, is there legally sufficient evidence supporting the lower court's decision (the distinction between this concept - a legal error - and "reweighing" facts on appeal - potential factual error - is a concept lost on many people, including some attorneys)? Did the judge abuse his or her discretion in denying a continuance to a party who has shown good cause for the continuance? These are but a few examples of potential legal errors that are "cognizable on appeal" - i.e., within the appellate court's jurisdiction.
Thus, from what you have said, it seems to me that you may have at least one issue on appeal - i.e., that the judge abused his discretion in denying you a continuance when you had hired a lawyer to appear and your lawyer did not appear. The court, for example, could have granted you a continuance - and extended the temporary protective order - in order to allow your lawyer to be present, or for you to hire a new lawyer as the case may be.
The other issues you raise, such as perjury that was discovered after the hearing when you learned that this person sought restraining orders before, would likely not be an issue the appellate court would address because, one, it was a "factual" issue; and two, the issue does not appear in the "four corners" of the trial court's records. As I said above, though, you very well may have other issues on appeal and not even realize it. I wish you the best of luck, and, if you have more specific questions, please feel free to either post them or contact me.
DISCLAIMER: This posting is for informational purposes only and is a statement of attorney opinion based upon limited information. It is not intended to constitute comprehensive legal advice or establish an attorney client relationship.
4 found this helpful
1 lawyer agrees
DUI / DWI Attorney
If the restraining order was a temporary order you probably have to file a writ. If it was the final order in the matter you can file an appeal. If the restraining order was part of a dissolution or parentage action it is probably reviewed by writ.
The denial of the continuance may be reason for to set aside and have a new trial provided you show that you suffered some prejudice in your lawyer not showing up. The perjury would probably have to be brought as a separate criminal action by lodging a complaint with the police or DA.
1 found this helpful