Defendants challenging their convictions with a delayed application for leave to appeal will have less time to do so under the Michigan Supreme Court’s amendment of MCR 7.205(F).
The MSC, on a 4-3 vote, has shortened the late appeal period from 12 months to six. The amendment takes effect Sept. 1, 2011.
The majority adopted the rule without comment. Justice Marilyn Kelly dissented, joined by Justices Michael F. Cavanagh and Diane M. Hathaway.
Kelly said the majority’s justification for the shortened period — that Michigan’s delayed appeal period is too generous when compared to other states — doesn’t hold water because Michigan’s appeals procedure has some significant differences.
A criminal defendant in Michigan has 42 days from the date of entry of a final judgment in which to file an appeal as of right. He or she has 21 days to file an appeal by leave.
Before today’s amendment, if an appeal was not sought within these time limits, a delayed application could be filed within 12 months from the date of entry of the final judgment. This is a two-tiered system but it is not typical of other two-tiered systems.
A majority of states with a two-tiered system have a period as long as ninety days in which to appeal. To perfect the appeal in those states, all that need be filed is a notice of intent. The deadline for filing the appellant’s brief is tolled until the trial transcripts are filed. The brief is then due within six months.
In Michigan, Kelly continued, there are a couple of big differences.
First, the time for appeal begins to run from the final judgment and is not tolled for production of the transcript. A defendant may use the deferred appeal period if he or she misses the initial deadlines because preparation of the transcript is delayed.
Second, Michigan requires an appeal by leave to be made on the merits. Hence, the appealable issues must be identified before the appeal can be filed. And in order to identify the issues, counsel must have the trial transcript. Therefore, the time for appeal by leave in Michigan must be longer than in states that do not require the issues to be identified when the appeal is filed.
Kelly said that in a “significant percentage” of cases, transcripts aren’t ready when the 21-day appeal period expires. In such cases, the delayed appeal period comes into play. And, unlike other states where only a notice of intent to appeal is required, Michigan defendants must present an application on the merits.
It’s a critical difference, Kelly maintained.
[T]he difference between Michigan’s procedures and those of states requiring only a notice of intent to perfect an appeal is highly significant. And it explains why
there is no sound basis to lower Michigan’s appeal period for delayed applications from one year to six months.Lowering the appeal period for leave cases to six months does not bring Michigan’s appeal period into conformity with the appeal period of other states.
Moreover, the amendment renders Michigan’s rule far more oppressive on appellants than is currently the case.
The Michigan Lawyer 