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How do I appeal a ruling
Anonymous3 views6 answers
My fiancee was sentenced by the judge in 1997 before the Cunningham vs. California case . He was sentenced to the high term by the judge due to priors. He was not given a jury trial at all. Per the above referenced case his 4th and 6th amendments were violated and I would like to know how to pursue this appeal.
Every day you wait to find an experienced appellate attorney, the more it hurts the odds of success, Sitting down with an experienced appellate attorney licensed in your jurisdiction as soon as possible to discuss the case in the confidential setting of his/her law office is the best option.
YOU can't appeal it because you aren't the defendant. It is also WAY too late to appeal this conviction. A Notice of Appeal must be filed within 60 days of sentencing, so it's about 18 years overdue.
If he is still in custody, or on parole, the only possible way to challenge the conviction would be through a habeas corpus conviction.
However, a habeas petition must be filed in a timely manner. Cunningham was decided in 2006, so he would have to establish a REALLY good reason for waiting nine years.
In addition, the California Supreme Court has ruled that Cunningham and other Supreme Court cases on similar issues are are not retroactive.
Unfortunately, it appears you are a decade or two late, even if the case would have helped your fiance, which it apparently would not have.
I don't think so: "Retroactive Application of Cunningham. Cunningham applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely was decided. Cunningham did not extend or modify the rule of Blakely, but merely applied it to the California sentencing scheme. (In re Gomez (2009) 45 C.4th 650, 653, 657, 88 C.R.3d 177, 199 P.3d 574 [petitioner whose rape conviction was final after Blakely could pursue habeas corpus challenge to upper term sentence].)"
5 Witkin, Cal. Crim. Law 4th (2012) Crim Trial, § 520, p. 804
I may be the bearer of bad news, but I suspect that the appeal had to be filed years ago. Moreover, since the fiancee plead out then the high term given by the judge may be moot for an argument since it was a plea. If it had been a trial then the fiancee may have had better results if he filed the appeal in a timely manner.
