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Issues that Can Be Raised on Direct Appeal Without a Certificate of Probable Cause

You can raise some types of issues after a guilty plea in a direct appeal without having to go through any special procedural hurdles.

To figure out whether your issues fall into this category, you must consider the nature of the facts and law that are involved. 

First, you can raise an issue on appeal only if all of the facts supporting the argument are already part of the court record. This means that the matter must have been discussed at a hearing that was documented by the court reporter or must have been discussed in written documents that were filed in the court.  If all the facts you need to bring your issue are not on the record, you will have to raise your issue in a state court petition for writ of habeas corpus. 

Second, the legal issue you are raising must be one of two types:
     • a challenge to an illegal search or seizure about which your defense lawyer filed an unsuccessful motion to suppress, or
     • a challenge to an action by the court or prosecutor that was made after you entered the plea and that does not affect the plea itself. These issues usually involve sentencing. Note that if your defense attorney did not object when the sentence was imposed, you may have to an include an argument that defense counsel that defense counsel provided ineffective assistance by failing to object.
          Several types of issues are in this category. One type of issue arises if the court or prosecutor violated the plea bargain by failing to comply with some specific part of the agreement. Another type of issue arises if the court imposed punishment that was significantly greater or different than what you were notified about in the plea negotiations and agreement. This might mean giving you fewer good conduct credits or ordering higher restitution fines than you expected.   

A third type of issue occurs when you entered a plea that gave the court a range of sentencing options and the court then abused its discretion in choosing a particular sentence.

For example, you might challenge denial of a “Romero” motion to strike a prior offense, a motion to reduce a felony to a misdemeanor following probation, or a request for less than the maximum sentence or for drug diversion.   You might also argue that probation conditions selected by the court were not lawful.

Another type of error can occur when the court clerk makes a mistake in recording the sentence imposed by the court. You may also be able to challenge a math error in the calculation of sentence credits. 

To bring a direct appeal, you must file a Notice of Appeal that says that the appeal is based on the denial of a motion to suppress evidence or on a ground arising after the plea that does not affect the plea’s validity. 

The notice of appeal must be filed within 60 days of the judgment. It is difficult to get permission from the court to file a late notice of appeal, but it may be possible if the prisoner’s attorney failed to follow through on a promise to file the notice or the prisoner tried diligently to file the notice in a timely manner.  

After you file a timely notice of appeal, the court of appeal will appoint an attorney to represent you at state expense if you do not have money to pay for an lawyer.
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