I filed an appeal for my case. I was assigned an attorney for my appeal (office of assigned counsel). At the time, I really felt like he wasn't even trying to help me, but was doing so based on obligation. After years of working on related cases by myself, I have realized how much he missed for my initial appeal. He reviewed my case and claimed to not find any appealable issues. He filed a Wende brief on my behalf (which was a disastrous move really). On their review, they also did not find any appealable issues.
I was arrested 4 days after an alleged incident. The officer who interrogated me 4 days before my arrest at the 'scene', never read me my Miranda rights. At trial, he actually made up what I said during that interrogation when he testified ... how is this not an appealable issue? My public defender who handled the trial appropriately objected pre-trial to this officer's testimony based on Miranda. This should have been part of my appeal, but it wasn't. Is it now possible to ask the court to reinstate my appeal because my court-appointed attorney should not have missed this issue?
The correct procedure is to either (or perhaps both) (a) file a petition for rehearing (due 15 days after opinion filed), and/or (b) petition for review in the CA Supreme Court (due 10 days after opinion is final, which is typically 30 days after opinion filed -- in other words, generally 40 days after the Court of Appeal opinion is filed).
Recalling a remittitur is generally allowed only for grounds of nonjudicial error, such as where the remittitur was issued due to “inadvertence or mistake, or as a result of fraud or imposition” practiced on appellate court. But recall not a substitute for rehearing or supreme court review.
A frivolous motion to recall may subject the moving party to sanctions.
No. Your chance to bring up the Miranda issue was during the 30-day period after the Wende brief was filed, when the defendant is entitled to personally submit his or her own supplemental brief. On another point, a claim that a witness lied is not an issue for appeal; it's up to the trier of fact, not the appellate court, to decide what the truth is.
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