"My attorney advised me I might be able to seek an interlocutory appeal. What is that and should I do it?"
Ciyou & Dixon, P.C. believes you, the Reader, need a fundamental understanding of how trial and appellate courts operated to meaningfully consider this important appellate tool.
For the most part, our legal system presupposes the trial court will make an accurate and timely decision (order) in any criminal or civil case. However, law is not so rigid as to mandate a trial occur in circumstances where an order of a trial court is in question and it might make sense to have a higher court provide some guidance on the matter.
This is where interlocutory appeals come into play. They are of two types. The first allows a party to bring the order of the trial court issued to the Court of Appeals as a matter of right.
For example, if a party asks the trial court to change the venue (county) in which the case will be heard to obtain an untainted jury pool, denial of this request (the order denying it) may be taken to the Court of Appeals as a matter of right.
A. Matter of Right.
Interlocutory appeals as a matter of right are rare, highly technical, and somewhat hard to understand by their legalese. Nevertheless, they may be sought by the filing of a Notice of Appeal on orders the trial court enters:
- For the payment of money.
- To compel the execution of any documents.
- To compel delivery of securities, and similar financial documents.
- For the sale or delivery of possession of real estate.
- Granting or refusing to grant a preliminary injunction.
- Appointing a receiver.
- For a writ of habeas corpus.
- Transferring or refusing to venue.
- Issued by and Administrative Agency that by statute is required to be appealed as a mandatory interlocutory appeal.
Once the Notice of Appeal is filed, and assuming the trial court stays the action (stops it), the case about the order in question is brief and tracks the process of any other appeal.
A more common and easy to understand interlocutory appeal is one that is discretionary in nature. Again it is anticipated any erroneous ruling by a trial court can and will be corrected on appeal. For this reason, the potential for an erroneous ruling by a trial court about a matter before it issues a final order is insufficient.
Instead, it demonstrate the person who seeks an interlocutory appeal will suffer substantial damage and expense if the order is erroneous and this determination is not made by the Court of Appeals until after trial and a final order.
Alternatively, if there is an unanswered question of law the trial court might have relied upon to make an error this may form the basis for a discretionary interlocutory appeal. Operationally, the party moves the trial court to certify its interlocutory order for appeal.
If it does so, the Court of Appeals must then accept the interlocutory appeal. When this occurs, the party files a Notice of Appeal and the case tracks the appellate process like any other appeal.
Effectively any order issued by a trial court may form the basis for a discretionary interlocutory appeal. However, the trial court must certify the order for interlocutory appeal and the Court of Appeals must accept it.
At Ciyou & Dixon, P.C., we understand the difficulty presented to Readers with this concept. For this reason, an example is provided from our practice. A serious violent felon is found to be in possession of a handgun. An argument is made that the police obtained this evidence through an illegal search and seizure.
For this reason, a motion to suppress the evidence (i.e., the handgun) was filed with the trial court. The trial court denied the suppression, but certified its order denying suppression at the request of the defendant. This is because the law was undeveloped if a Terry stop search and seizure analysis applied or a search warrant was necessary.
The Court of Appeals accepted this interlocutory order, and reversed and ordered the handgun suppressed. Had this case not unfolded this way, namely by an interlocutory appeal, the defendant would likely have been convicted, had to sit in jail pending appeal, only to later have his conviction overturned for the improper admission of evidence.
The type of harm this would have caused this criminal defendant, enduring a jury trial and sitting in jail for an erroneous denial of suppression make the point of the harm that must be demonstrated. Interlocutory appeals are rare. Nevertheless, Ciyou & Dixon, P.C. advocates are always mindful of the legal tools to meet a clients needs and serve the interests of justice.
Is this the approach for and consideration in your matter?