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My appeal case was dismissed because my appellate Attorney did not file on time. Can I reinstate to the Appeals and continue

San Francisco, CA |

My criminal case was mishandle by my attorney; no evidence was allowed and most of the witness were dismissed. I was convicted. What can I do. If evidence and witness were allowed; this should not have happen.. This is a for here say case and should have never even gone to court. Now the accuser brags about her relatives being friends with the DA's office.

Attorney Answers 3


Consult a qualified California lawyer to review your trial transcript and see if you have grounds for a professional negligence case against your former lawyer. A blown deadline such as the failure to get a notice of appeal filed on time seems like a slam dunk, but your appellate rights are only as good as your original case's rights. Even if your former lawyer mishandled tyour trial and the work was below the standard of care, since the trial judge's rulings on admissibility of witnesses and evidence are given lots of discretion, you need to have the specifics of your situation reviewed by a lawyer to assess your claim.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

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In Florida, you would file a petition for a belated appeal in the appellate court, asked for permisson to proceed with appeal despite it being late. You would have to allege that you told the attorney to file an appeal and he/she did not. The appellate court would then send it to the trial (lower) court for a hearing as to why no appeal notice was filed by the attorney. If the lower court finds that you indeed told the attorney to file the appeal and he/she did not (for no GOOD reason), then that court will inform the appellate court that you should be entitled to the appeal despite being late. Then the appellate court will issue an order, essentially accepting your petition as a notice of appeal. The appeal proceeds from there.

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YOu state that your appeal was dismissed because your attorney did not file in time. You do not state whether your attorney failed to file a notice of appeal in time or whether your attorney failed to file an opening brief within the statutory timelines. In either case, you should contact the not-for-profit firm, FDAP, to protect your appellate rights. The First District Appellate Project administers the appointed counsel program for the Court of Appeal in the San Francisco area. They can offer assistance in getting late notices of appeal accepted and in getting defaulted appeals re-instated. FDAP's contact information is:

First District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
Telephone: (415) 495-3119
Fax: (415) 495-0166

Good luck with your case!


Amanda F. Benedict
Law Office of Amanda F. Benedict
Appeals, Legal Reseach & Writing Services, Bicycle Accident Litigation
162 S. Rancho Santa Fe Road, Suite F-50
Encinitas, CA 92024
(619) 236-0054 (San Diego), (760) 942-0054 (N.County)
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American author

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