Some of what follows applies only to employees of the DPA:
Within 5 Days - A motion for new trial under RCr 10.06 must be filed within 5 days after the verdict is returned. (The exception is a motion for new trial based on newly discovered evidence (CR 60.02), which must be filed within a year or “at a later time if the court for good cause so permits.”) It can cover any issue arising from the trial. RCr 10.02(1). Johnson v. Com., 17 S.W.3d 109 (Ky.2000).
A motion for judgment notwithstanding the verdict under RCr 10.24 must also be filled within 5 days of the verdict and, since it is essentially a renewed motion for directed verdict, i.e., a complete acquittal, it can only be filed if the defendant moved for a directed verdict at the close of all the evidence.
Remember that in Funk v. Com., 842 S.W.2d 476 (Ky.1992) and other prior cases, the Court has recognized that cumulative error may be a ground for reversal even if each individual error is not sufficient to require reversal. In Funk, the court found that the cumulative effect of prejudice from three trial errors was sufficient to require reversal.
If you miss the deadline, move for an extension and then file the motions.
Soon Thereafter – Complete a motion to proceed in forma pauperis. Get a new affidavit of indigency on the defendant and attach it to the motion before filing the motion with the clerk.
Tender the in forma pauperis (IFP) order to the judge. Remember that the IFP order must (1) specifically refer to KRS Chapter 31, and (2) specifically appoint DPA to the appeal. DPA must be (re-)appointed to the appeal even if DPA represented the client at trial. Otherwise, the appellate court and DPA consider the appellant to be represented on appeal by trial counsel, or to be proceeding pro se. And then trial counsel gets a letter from the appellate court ordering him or her to show cause why the appeal has not been perfected and why it should not then be dismissed. (See the sample motions and orders in this volume.)
Within 30 Days – RCr 12.04 requires that the notice of appeal be filed within 30 days of the final judgment or within 30 days of the denial of the motion for new trial. The exception to this is when the court denies the motion to proceed in forma pauperis. (See sample forms.) The notice need not list the issues on appeal or the name of any particular attorney who will be representing the defendant.
Within 10 days of filing the notice of appeal, a designation of record must be filed. One must be filed in every case. The designation of record states what portions of the trial-level proceedings are to be included in the appellate record. It must include the specific dates of the proceedings which are to be included in the record. A short description of each event should also be included if there may be any doubt. The clerk will not spontaneously just “copy everything.” Also, remember to include designations of any relevant district or juvenile court proceedings. This is especially important when district court testimony was used to cross-examine a witness or when representing a youthful offender who was transferred to circuit court. (See sample forms.)
Failure to designate the record properly can lead to dismissal of the appeal or the refusal of the appellate court to review issues pertaining to the missing part of the record. Com. v. Black, 329 S.W.2d 192 (Ky.1959). All absences in the record on appeal are presumed to favor the trial court.
A certificate as to transcript is also required in any non-video appeal, must be attached to the designation of record, and must be signed by both trial counsel and the court reporter. CR 75.01(2). (See sample.)
Lastly, send a notification to DPA (see sample):
Appeals Branch Manager
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Do not file the notification to DPA in the appeal. It is not a legal document. It is just designed to help the appeals people get started on the case.
Practice Tip: Exhibits. Not all exhibits are automatically transferred to the appellate court. CR 75.07(3) provides: “Except for (a) documents, (b) maps and charts, and (c) other papers reasonably capable of being enclosed in envelopes, exhibits shall be retained by the clerk and shall not be transmitted to the appellate court unless specifically directed by the appellate court on motion of a party or upon its own motion.” Photograph any large exhibits which will not go to the appellate court and the clerk can send up the photographs with the record. Include copies of any power point presentations and the original copies of any documents that have been enlarged. Finally, check the record sheet with the clerk to make sure it includes all the exhibits and also indicates which were introduced into evidence and what was just marked for identification.
