HANDLING THE CASE
This section will discuss the obligations of counsel throughout the appellate process.
A. The Court Website
It is extremely easy for counsel to obtain up-to-date information about any pending appellate case. The dockets of all California Supreme Court and Court of Appeal cases may be accessed on the internet at http://appellate cases.courtinfo.ca.gov/.
B. The SDAP Website: SDAP.ORG
The SDAP Website provides panel attorneys assistance in legal RESEARCH concerning criminal, delinquency, dependency, and habeas corpus law. Recent victories in the Sixth District Court of Appeal are listed. Panel attorneys can also obtain information concerning the rules and guidelines for compensation CLAIMS and download the necessary forms.
Much of this panel manual can be found under PRACTICE TOOLS. This section contains useful information concerning filing requirements, a directory of who to place on a proof of service and how to contact a client or party, general information concerning appellate practice, filing motions, briefs, and petitions, and sample letters, motions, and petitions.
Finally, LINKS to the appellate courts, the appellate projects, government sites, superior courts, and other sites are provided.
C. Initial Steps
The appeal is typically perfected and the initial steps described in this section are taken care of before association with a panel member. However, counsel should be on the lookout for the limitations of issues preserved for appeal and aware of the process by which certain limitations may be removed. Counsel should also be knowledgeable concerning the steps for obtaining the client's release during the appeal.
The transition from trial counsel to appellate counsel is a delicate one. It can be accomplished in the client's best interests by appellate counsel assessing what has been done, communicating with the client about the goals for appeal, and taking the necessary steps consistent with those goals. This frequently requires consideration of matters already discussed with trial counsel, so it is important to seek input from former counsel.
1. Notice of Appeal
The right to appeal in a criminal case is conferred and defined by statute. (Pen. Code, sec. 1237.) Appeal is initiated by filing a notice of appeal with the Clerk of the Superior Court within 60 days from rendition of the judgment or challenged order. (Cal. Rules of Ct., rule 8.308(a).) The appeal must be taken from a final judgment, which is defined to include an order granting probation, insanity commitment, mentally disordered commitment, or an addiction commitment. (Pen. Code, sec. 1237, subd. (a).) The defendant may file a general notice of appeal, simply appealing from the judgment following a jury or court trial or a contested probation revocation. (Pen. Code, sec. 1237, subd. (a).) This notice does not require any specification of issues and counsel on appeal is not limited by any designation of issues by trial counsel. There is the further right to appeal orders made after judgment which affect the substantial rights of a defendant and post-judgment orders denying additional presentence credits. (Pen. Code, secs. 1237, subd. (b) and 1237.1.)
Technical requirements are added when a criminal defendant wishes to appeal following a plea of guilty or an admitted violation of probation. If sentencing issues are to be raised, the notice of appeal must state that a sentencing appeal is being taken which does not challenge the validity of the plea. (Cal. Rules of Ct., rule 8.304(b)(4)(B).) If a Fourth Amendment appeal is contemplated, the notice of appeal must specify that a search and seizure issue is to be raised. (Rule 8.304(b)(4)(A).) The appeal will be deemed inoperative and is subject to dismissal if these designations are not made. (Rule 8.304(b)(3).) However, the specification of a single proper ground for appeal allows any and all cognizable issues to be raised. (People v. Jones (1995) 10 Cal.4th 1102, 1105.) Because the clerk of the trial court may not catch a defect in the notice of appeal, it is important for counsel in guilty plea cases to review the notice and take steps to amend the notice or seek relief in order to cure any defect.
Other than sentencing and Fourth Amendment issues, a guilty plea forfeits appellate issues except those which affect the legality of the plea or the trial court’s jurisdiction. (See People v. Turner (1985) 171 Cal.App.3d 116, 123-129; listing issues which survive a guilty plea; see also In re Chavez (2003) 30 Cal.4th 643, 649, fn. 2.) An example of such an issue is the denial of a motion to withdraw the guilty plea. In order to raise an otherwise cognizable issue on appeal, the defendant must obtain a certificate of probable cause from the trial judge. If a certificate is obtained on one issue, all otherwise cognizable claims may be raised on appeal. (People v. Hoffard (1995) 10 Cal.4th 1170, 1173-1174.) The necessary steps for obtaining a certificate of probable cause are discussed in the following section.
If appellate counsel discerns a defect in the notice of appeal or the absence of a certificate of probable cause, the problem must be immediately addressed. If it is less than 60 days since the imposition of judgment, counsel can file an amended notice of appeal or an application for a certificate of probable cause. If it is too late to proceed in the trial court, relief from default must be sought in the Court of Appeal.
2. Certificates of Probable Cause
The requirement of a certificate of probable cause is codified in Penal Code section 1237.5. Generally speaking, section 1237.5 provides that a defendant may not prosecute an appeal following a guilty plea, no contest plea or admission of a probation violation unless he or she has filed in the Superior Court "a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." (Sec. 1237.5, subd. (a), emphasis added.) As is the case with all appeals from Superior Court, the required statement must be filed within 60 days of the entry of judgment. (See Cal. Rules of Ct., rules 8.304(b)(1), 8.308(a).) As a matter of practice, counsel may execute the statement on the client's behalf. As was noted above, a certificate of probable cause is not required to prosecute every appeal following a guilty plea. Rather, issues "occurring after entry of the plea" (usually sentencing issues) and search and seizure issues which were litigated in Superior Court may be raised by filing a notice of appeal which simply specifies the issue to be raised. (Rule 8.304(b)(4).) If counsel intends to raise a sentencing or Fourth Amendment issue and an issue which requires a certificate of probable cause, a unitary notice of appeal and application for certificate of probable cause should be filed. (People v. Mendez (1999) 19 Cal.4th 1084, 1102, fn. 11.)
It must be emphasized that most issues in a criminal case are waived by a plea of guilty. Thus, if an issue is waived by a plea, the issuance of a certificate of probable cause does not serve to resuscitate it. (People v. Turner, supra, 171 Cal.App.3d 116, 125.) Given this reality, defense lawyers are well advised to become conversant on those issues which are waived by a guilty plea. (Id., at pp. 123-129.)
Once the defendant has filed his request for a certificate of probable cause, the duty falls upon the trial court to either grant or deny the request. (Pen. Code, sec. 1237.5, subd. (b).) Pursuant to California Rules of Court, rule 8.304(b)(2), the court must rule on the matter "[w]ithin 20 days after the defendant" files his statement. When the court issues its ruling, notice must be given to the parties. (Cal. Rules of Ct., rule 8.304(c).)
Importantly, trial courts have been directed to employ a very generous standard in ruling on requests for a certificate of probable cause. In this regard, "[i]t is not the trial court's responsibility to determine if there was an error in the proceedings . . . Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. [Citations.]" (People v. Holland (1978) 23 Cal.3d 77, 84, emphasis in original; accord, People v. Hoffard, supra, 10 Cal.4th 1170, 1178-1179.)
In the event that a trial court refuses to issue a certificate of probable cause, the propriety of the court's ruling is reviewable by way of a petition for a writ of mandate. (Holland, supra, 23 Cal.3d at p. 84, fn. 6.)
As a final point, it is important to note that it is presently unsettled as to whether a motion for relief from default will lie in the Court of Appeal when trial counsel has failed to timely request a certificate of probable cause, but has filed a timely notice of appeal. (See In re Chavez, supra, 30 Cal.4th 643, 652-657; holding that a motion for relief from default does not lie when neither a timely notice of appeal nor a request for certificate of probable cause is filed.) Since the filing of a timely notice of appeal confers jurisdiction on the Court of Appeal, it may be plausibly argued that the court also has jurisdiction to allow an untimely certificate request to be considered. (See People v. Jones, supra, 10 Cal.4th 1102, 1108, fn. 4; reviewing court has the authority to grant relief from default to allow the filing of an amended notice of appeal.)
3. Relief from Default
Pursuant to California Rules of Court, rule 8.308(a), a notice of appeal from a felony conviction must be filed no later than 60 days after entry of judgment (i.e. the date of sentencing). Upon occasion, the defendant will fail to meet the 60 day deadline. While the law treats the 60 day rule as a firm jurisdictional limit on the right of appeal (In re Benoit (1973) 10 Cal.3d 72, 81), the reality remains that the tardy filing of a notice of appeal can be excused under a number of theories. The most common theories for relief are addressed below.
At the outset, it should be noted that the preferred procedure for dealing with a late notice of appeal is to file a motion for relief from default in the Court of Appeal. While California Rules of Court, rule 8.60(d) purports to preclude such a motion when a notice of appeal has not been timely filed, the fact remains that motions for relief from default are routinely entertained as a matter of custom in several appellate courts, including the Sixth District. (See In re Jordan (1992) 4 Cal.4th 116, 121; the Fourth District adjudicated a “‘Request for Finding of Constructive Filing of Notice of Appeal . . .’”)
As an alternative to a motion for relief from default, a defendant may also file a petition for writ of habeas corpus in the Court of Appeal. (In re Hernandez (1974) 40 Cal.App.3d 893, 894.) However, since the government has only 15 days in which to respond to a motion (Cal. Rules of Ct., rule 8.54(a)), the use of a habeas petition will generally not be the most expeditious remedy for the defendant.
The primary theory which will allow relief from default is some form of claim that trial counsel failed to perform his or her duties. In this regard, one of two claims may be available: (1) trial counsel failed to fulfil his promise to file a notice of appeal; or (2) trial counsel failed to advise the defendant of his right to appeal.
With respect to the former category, the law could not be clearer. If a trial lawyer fails to file a timely notice of appeal upon the client’s request, relief from default must be granted. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477; accord, In re Benoit, supra, 10 Cal.3d 72, 87-88.)
In a similar vein, a trial attorney has the duty to provide the client with "advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal." (Pen. Code, sec. 1240.1, subd. (a).) Thus, if trial counsel fails to advise the defendant of his right of appeal, relief from default should be granted if the defendant promptly moves to institute an appeal once he learns of his appellate rights. (In re Arthur N. (1974) 36 Cal.App.3d 935, 940-941; accord, Castro v. Superior Court (1974) 40 Cal.App.3d 614, 619-621.)
Aside from default occasioned by the ineffective assistance of trial counsel, a defendant may also rely on the trial court's failure to fulfill its duty. In this regard, California Rules of Court, rule 4.470 requires the trial judge to advise a defendant of his right of appeal if the defendant has either stood trial or had a contested probation revocation hearing. If the court fails to provide the information required by rule 4.470, a defendant may obtain relief from default on the grounds that he was ignorant of his right to appeal. (In re Arthur N., supra, 36 Cal.App.3d 935, 939-941; see also People v. Acosta (1969) 71 Cal.2d 683, 688-690.) However, since relief from default is discretionary, it is essential that such relief be sought with all due diligence once the defendant becomes aware of his right of appeal. (See Castro v. Superior Court, supra, 40 Cal.App.3d 614, 621-622; relief denied where defendant submitted a "vague" declaration which failed to adequately explain his two year delay in filing a notice of appeal.)
In addition to the foregoing theories, a defendant is oftentimes entitled to relief under the doctrine of constructive filing. Typically, this theory will come into play when an incarcerated prisoner asks his custodian to mail his notice of appeal to the Superior Court. If the notice of appeal is given to the custodian within the 60 day period prescribed by rule 8.308, relief will be granted if the notice of appeal arrives at the Superior Court too late. (In re Jordan, supra, 4 Cal.4th 116, 118-119; Cal. Rules of Ct., rule 8.308(d).) Similarly, a pro per notice of appeal sent to the wrong court will be deemed timely filed. (People v. Griggs (1967) 67 Cal.2d 314, 317-318.)
Importantly, it should be noted that the doctrine of constructive filing is not limited solely to the situation where a piece of mail is unduly delayed. Rather, if a prison official or other government officer misleads a defendant concerning his right of appeal, grounds for relief from default may well exist. (Benoit, supra, 10 Cal.3d 72, 83; relief will be granted when a defendant relies "upon representations or conduct of prison officials which lulled him into a false sense of security.") The same rule applies to court officers. (People v. Martin (1963) 60 Cal.2d 615, 619; relief granted where trial judge misled the defendant.)
In short, the failure to file a timely notice of appeal is not necessarily the death knell for a defendant's opportunity to pursue an appellate remedy. Rather, if a defendant quickly endeavors to seek relief once he learns of his right of appeal, there is a good chance that he will receive his entitlement to appellate review.
4. Bail or Stay Pending Appeal
Following conviction of a misdemeanor, a defendant has a right to bail pending appeal. (Pen. Code, sec. 1272, subd. 2.) If a defendant has been convicted of a felony, the question of bail pending appeal is within the discretion of the trial court. (Pen. Code, sec. 1272.1.)
Appellate counsel should consider whether a client wants or would qualify for release pending appeal. Many factors go into the decision of whether to make such an application for bail, release on own recognizance or stay pending appeal. First, but not controlling, is the client's desire for such a motion. A secondary though realistic limitation is the availability of property or funds to post as surety should an amount of bail be set. Counsel should not make any assurances or commitment to the client pending the collection of information and consultation with SDAP.
The motion must be made in the first instance in the trial court. Any application to the Court of Appeal must demonstrate that a proper application was made in the trial court and was unjustifiably refused. (Cal. Rules of Ct., rule 8.312(a)(2).) Trial counsel should be the first resort. He or she has the unique advantage of information necessary to make the motion. This includes not only the statutory guidelines of Penal Code section 1272.1, but also other information which would influence the exercise of discretion by the trial court. In all likelihood, trial counsel will be familiar with the trial judge's philosophy on such matters and the information which would be most influential. For example, in Santa Clara County, the Office of Pretrial Services should be served with a copy of the motion so that it can provide the court with its recommendation.
The best resolution is if trial counsel is willing to make the application even if it was not made earlier. If the motion was made earlier and denied, then appellate counsel should consider whether the trial court properly exercised its discretion and made appropriate findings.
To qualify for release, a defendant convicted of a felony must demonstrate by clear and convincing evidence that he or she is not likely to flee and that he or she does not pose a danger to any other person or to the community. (Pen. Code, sec. 1272.1, subds. (a) and (b).) There is the further requirement that the appeal not be taken for the purpose of delay and that it raises a substantial legal question, which if decided in the defendant's favor, is likely to result in reversal. (Sec. 1272.1, subd. (c).) The question must be a “close” one of “more substance than would be necessary to a finding that it was not frivolous." (Sec. 1272.1, subd. (c).)
Release after a felony conviction is within the trial court's discretion. However, the exercise of discretion is not unbridled and reasoned determination requires a brief statement of reasons in support of an order denying a motion for bail on appeal. (Pen. Code, sec. 1272.1, subd. (c).) The statement must be of sufficient specificity to permit meaningful review. (In re Podesto (1976) 15 Cal.3d 921, 937-939.) If the trial court fails to specify reasons, the Court of Appeal will order it to reconsider the motion. (Ibid.)
If trial counsel is unwilling to make the application and appellate counsel is at such a distance from the court that appearance for the motion would be difficult, it should still be considered in cases involving nonviolent offenses with relatively short sentences. A SDAP staff attorney may be willing to make the necessary court appearance in an appropriate case.
If a probationer is granted bail on appeal, the trial court retains jurisdiction to later delete a condition of probation imposing a jail term. (In re Stallings (1970) 5 Cal.App.3d 322, 329-330, overruled on other grounds in People v. Cookson (1991) 54 Cal.3d 1091, 1100.) Thus, a client who is released on bail should be encouraged to behave well during the pendency of the appeal. (See also People v. Tanner (1979) 24 Cal.3d 514, 521-522; defendant was not required to serve prison sentence required by law since he complied with conditions of probation while the People’s appeal was pending.)
5. Financial Qualification for Indigent Representation
SDAP does no formal screening of clients to determine whether or not they are indigent. We assume the financial qualification of appellants once we are appointed by the Court of Appeal. Generally, the court assumes that a defendant is indigent if a pro per notice of appeal is filed or the notice of appeal affirmatively requests the appointment of counsel. (See Pen. Code, sec. 1240.1, subd. (b); request for appointment of counsel is to be filed in trial court.)
Occasionally, we will be appointed even though the client has retained an attorney to handle the appeal. In such cases, we inform retained counsel of the necessity to file a substitution. (Cal. Rules of Ct., rule 8.36(b).)
In other cases, there is no retained appellate counsel but our file reveals that the client had a retained attorney in the trial court. Similarly, we may receive information (usually via the probation report) that the client has substantial assets. In this circumstance, we have a duty to inquire concerning the client’s finances.
In People v. Nilsen (1988) 199 Cal.App.3d 344, the defendant obtained appointed trial counsel. The defendant did not divulge to the trial court that he had a pending wrongful termination action. Settlement funds were used to retain counsel for appeal.
The appellate court stated its concern that appointed trial counsel was aware of Nilsen's settlement, yet did not inform the trial court. It then stated: "In our view, if appointed counsel becomes aware of a significant change in a defendant's financial circumstances, he has a duty as an officer of the court to disclose that fact to the court. (Cf., ABA Model Rules Prof. Conduct, rule 3.3 (a)(2) [CANDOR TOWARD THE TRIBUNAL, ‘A lawyer shall not knowingly: fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client’]; State Bar Rules Prof. Conduct, rule 7-105(1) [Trial Conduct, ‘In presenting a matter to a tribunal, a member of the State Bar shall: Employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth . . .’].)" (Nilsen, supra, 199 Cal.App.3d at pp. 351-352.)
In light of Nilsen, appointed counsel has an ethical duty of disclosure when it appears that a client may not be indigent. When SDAP receives information that a client may have financial resources sufficient to retain appellate counsel, we ask the client to fill out a financial form which must be signed under penalty of perjury. The client is informed that the form will be submitted to the Court of Appeal. We then send the form to the court so that it may make a determination as to whether the client qualifies for the appointment of counsel. If the client declines to fill out a financial form, we notify the court of the facts which indicate that the client may not be indigent.
In the vast majority of criminal cases, the defendant is indigent by the time an appeal is taken. However, there are instances where appointed counsel learns that a client may not be indigent. If this situation arises, you should promptly contact SDAP so that the matter may be expeditiously handled.
6. Potential Adverse Consequences.
An important duty of appellate counsel is to ascertain whether his or her client runs a risk of being harmed by proceeding with an appeal. If there is such a risk, counsel must explain the possible adverse consequence to the client so that he or she can make an informed decision as to whether to continue with the appeal.
The subject of adverse consequences is complex. It is incumbent upon counsel to remain well versed on changes in the law so that a potential problem can be timely spotted. Although space limitations do not allow for a thorough examination of the subject, a few examples of common adverse consequences are found below.
In many cases, the remedy sought on appeal is the opportunity to withdraw a guilty plea. Typically, this remedy is sought in cases where a pretrial suppression motion was denied and a plea was entered, or where the defendant made a motion to withdraw his guilty plea. In both of these situations, the defendant may receive a longer sentence in the renewed trial court proceedings. (People v. Collins (1978) 21 Cal.3d 208, 215; People v. Hill (1974) 12 Cal.3d 731, 769.)
Upon occasion, a trial court will impose an “unauthorized” sentence (i.e. a sentence which “could not lawfully be imposed under any circumstance in the particular case”). (People v. Scott (1994) 9 Cal.4th 331, 354; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1153.) When such an illegal sentence is set aside on appeal, the trial court may impose a lengthier sentence on remand. (People v. Serrato (1973) 9 Cal.3d 753, 764-765; People v. Brown (1987) 193 Cal.App.3d 957, 961-962.) Prominent examples of “unauthorized” sentences are: (1) the failure to impose a required sentence under the three strikes law (People v. Ingram (1995) 40 Cal.App.4th 1397, 1405-1412); (2) the failure to impose a full term determinate sentence when the only other count carries an indeterminate sentence (People v. Reyes (1989) 212 Cal.App.3d 852, 856); (3) the improper staying of an enhancement (People v. Harrell (1989) 207 Cal.App.2d 1439, 1447); (4) an incorrect application of Penal Code section 654 (People v. Price (1986) 184 Cal.App.3d 1405, 1412); (5) an improperly high calculation of presentence credits (People v. Delarosa (1986) 176 Cal.App.3d 318, 321); and (6) the failure to impose mandatory fines, fees or penalty assessments (People v. Talibdeen, supra, 27 Cal.4th 1151, 1153-1157).
In addition to the “unauthorized” sentence situation, it is essential to note that a grant of probation is not set in stone. Thus, after a successful appeal, a probationer may be sentenced to state prison if “new facts” come to the court’s attention which justify the harsher punishment. (People v. Thornton (1971) 14 Cal.App.3d 324, 327; but see People v. Hanson (2000) 23 Cal.4th 355, 363, fn. 5.)
In short, there are a myriad of consequences which can arise from a successful appeal. While an attorney cannot be omniscient, it is imperative for counsel to recognize the foreseeable potential adverse consequences which may accrue to the client. In this way, our clients will be able to make intelligent and informed decisions in choosing whether to pursue a potentially risky appeal.
D. Review of the Opinion
If you get an opinion from the Court of Appeal affirming the judgment, the first step is to assess whether there should be a petition for rehearing or review. It may be helpful to consult the SDAP attorney who is assisting or monitoring the case. Your obligation to the client is to promptly provide him or her with the opinion and your advice about further review.
Assuming that you believe that further review could benefit your client, you should go forward with a petition for rehearing and/or petition for review. If you believe that nothing can be gained by further review, it is your obligation to so advise the client and promptly send the record on appeal to his or her custody with a full explanation as to the possible methods of obtaining further review (i.e. petitions for rehearing and review.) In your letter to the client, you should be certain to specify the relevant deadlines for seeking further review. If a federal constitutional issue is presented in the case, it is your duty to file a petition for review, or to confer with SDAP staff regarding any case specific reasons for not doing so.
If you receive an opinion granting all or part of the relief requested, you must also promptly notify the client. If the relief granted is total, the only remaining significant decision will be whether to prepare an answer to the AG’s petition for review if one is filed. If relief is partial, the client will have to make an informed decision on whether it is prudent to risk what has been gained by seeking greater relief by way of petition for rehearing and review. You should analyze the relative benefits and risks and convey them to your client. You need an informed decision by the client before you either risk the benefit obtained or abandon the chance for greater benefit by failing to seek review.
If rehearing is not granted and review is not sought, the Court of Appeal will issue its remittitur 60 days after the filing of the opinion. (Cal. Rules of Ct., rules 8.264(b)(2)(A) and 8.272(b)(1).) If review is sought and denied, the remittitur will issue when the Supreme Court denies review. (Rule 8.272(b)(1)(A).)
The issuance of the remittitur is the signal to the trial court that appellate jurisdiction has ended. The case is now properly back before the trial court to carry out the decision of the higher court.
In the case of an affirmance, the document has little significance if the client has been serving the sentence imposed. Should the client have been released on a stay or bail pending appeal, the client should be informed well in advance of when the remittitur will issue and what to expect. The client may want a motion to modify a grant of probation and if that is a viable motion, the appellate lawyer should communicate with the trial attorney or coordinate efforts to assure that the motion is made. (See In re Stallings, supra, 5 Cal.App.3d 322, 329-330; Pen. Code, sec. 1203.3 allows for modification of the terms of probation based on “good conduct and rehabilitation during the time the appeal was pending. [Citation.]”)
If the case has been reversed with directions to hold further proceedings, appellate counsel should immediately write to the trial judge when the remittitur is issued. In this way, the case can be promptly placed on the court’s calendar. If the original trial judge is no longer on the bench, counsel should notify the Presiding Judge so that action can be taken.
If the Court of Appeal has ordered a modification of the judgment, counsel should write to the trial judge and ask that the modification be made. Subsequently, counsel should follow up by obtaining a copy of the amended abstract of judgment or other judgment. A copy of the new judgment should be sent to an incarcerated client to ensure that CDC or a jail is complying with the new judgment.
Coordination with trial counsel is important if there has been a remedy which will require further court appearances and resolution of issues in the trial court. If the case has been reversed for a new sentencing hearing, transmit the opinion, the record and some advice which will further the goal of ultimately achieving a reduced sentence. Communicate with the client about whether an updated probation report would present favorable information and help in achieving the goal of a more favorable sentence. (See People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273-1275; Cal. Rules of Ct., rule 4.411(c).)
If the case is remanded for the possibility of a new trial, be sure the record on appeal is forwarded to trial counsel. Sending it to the client in prison will often result in its loss since the client will be in transit. In addition to the record, there may be other information or evidence you have collected over the course of the appeal that may be helpful on retrial. Transmit it to the client or the trial attorney as appropriate. If there were possible objections to evidence or other possible motions which might be developed at retrial, share those thoughts with trial counsel so that they get consideration at the right time.
If an order to produce the client from state prison is in order, make sure the Superior Court Clerk has the client’s current location at the Department of Corrections. Make sure that any notices are also addressed to trial counsel and that counsel will appear to protect the client's interests.