Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 3: Appeal - how taken

Effective Date: 09/01/1999
Updates: Amended May 15, 1979, effective July 1, 1979 Amended May 29, 1986, effective July 1, 1986
Amended July 28, 1999, effective September 1, 1999

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(a) Filing the notice of appeal

An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. A party need not claim an appeal from an interlocutory order to preserve his right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rules of Civil Procedure 46 or Massachusetts Rules of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

(b) Joint or consolidated appeals

If two or more persons are entitled to appeal from a judgment or order of a lower court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) Content of the notice of appeal

The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by the party or parties taking the appeal, unless the appellant is the minor subject of the action; a notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(d) Service of the notice of appeal

The clerk of the lower court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party at his last known address. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or his counsel. The clerk shall note in the docket the names of the persons to whom he mails copies, with the date of mailing.

(e) Change of counsel on appeal in criminal and certain non-criminal cases

If the defendant in a criminal case or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10 was represented by counsel at trial, trial counsel shall continue to represent that party on appeal until the trial court permits him to withdraw his appearance and until an appearance is filed by substitute counsel. If trial counsel wishes to withdraw, he shall, on the day upon which the notice of appeal is filed, file a motion to withdraw. Any motion under this provision shall be marked up by the trial counsel for hearing no later than seven days after filing. If the motion to withdraw is allowed, the judge shall assign the Committee for Public Counsel Services to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

(f) Appointment of appellate counsel in child welfare cases

Any party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was represented by counsel at trial, shall continue to be represented by that counsel on appeal until either the trial court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the trial court has denied a motion to appoint counsel for appellate purposes. Trial counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal. At the same time, if trial counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes. Subject to the provisions of Supreme Judicial Court Rule 3:10, § 7, trial counsel shall continue to represent the party at all trial court proceedings. If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

Reporter's notes

(1999) The 1999 amendments to Appellate Rule 3 were part of a comprehensive set of amendments to the Appellate Rules (Rules 1, 3, 4, 8, and 10) that had been proposed by the Supreme Judicial Court Committee on Appeals of Child Welfare Cases. The purpose of the 1999 amendments is described in the 1999 Reporter’s Notes to Appellate Rule 1(c).

Appellate Rule 3(c) has been amended to require that in child welfare cases, the notice of appeal must be signed by the party or parties taking the appeal unless the appellant is the minor who is the subject of the action. The clerk is directed not to accept an appeal that is not so signed. The purpose of this change is to eliminate the taking of an appeal on behalf of an absent and disinterested client.

The amendment to Appellate Rule 3(f) make it clear that until appellate counsel files an appearance, trial counsel is obligated to continue representation of the client. Even after appellate counsel has filed an appearance, trial counsel will continue to represent the party at all proceedings in the trial court.

(1979) The second paragraph of subdivision (a) is amended by the addition of a reference to Mass.R.Crim.P. 22, “Objections,” to clarify that a party need not claim an exception to an interlocutory order adverse to his position to preserve his right to have that order subsequently reviewed on appeal.

Subdivision (b) regulating joint or consolidated appeals, is consistent with prior criminal appellate practice.

Subdivision (c) is amended to reflect the fact that in a civil case, the notice of appeal must designate the judgment, order, or part thereof which is appealed from. It would also be appropriate in an interlocutory appeal in a criminal case for the notice of appeal to designate the order from which an appeal is being taken (e.g., denial of motion to suppress, grant of motion to dismiss), but this is not required by the rule because there is seldom any question about the matter being appealed.

General Laws, c. 278, § 33B (St.1955, c. 352, § 2) formerly provided that the clerk was to notify the District Attorney of a claim of appeal “forthwith.” Subdivision (d) is more explicit in setting out the manner of notice and will require notification of co-defendants, if any, when a notice of appeal is filed.

Subdivision (e) “Change of Counsel on Appeal in Criminal Cases,” is new and addresses the continuing responsibility of the trial attorney to provide assistance to a client beyond entry of final judgment in the trial court. See ABA Standards Relating to Criminal Appeals 21-2.2(a) (2d ed., Approved Draft, 1978). This subdivision seeks to avoid a hiatus in legal representation during a critical period when the defendant has questions as to the meaning and effect of conviction and the option of whether to appeal. ABA Standards, supra, commentary at 10.

In Pires v. Commonwealth, Mass.Adv.Sh. [1977] 2601 the Supreme Judicial Court held that a lawyer has a professional obligation to his client which goes beyond the trial of the case. The court adopted the provisions of the American Bar Association Project on Standards for Criminal Justice as the appropriate measure of the responsibility of counsel. Standard 8.2 of the Defense Function (Approved Draft 1971), provides:

8.2 Appeal. (a) After conviction, the lawyer should explain to the defendant the meaning and consequences of the court’s judgment and his right of appeal. The lawyer should give the defendant his professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal. He should also explain to the defendant the advantages and disadvantages of an appeal. The decision whether to appeal must be the defendant’s own choice. (b) The lawyer should take whatever steps are necessary to protect the defendant’s right of appeal.

(1973) An appeal is initiated by filing in the lower court a notice of appeal, within 30 days following the order or judgment appealed from. If the Commonwealth or any office or agency thereof is a party, however, the appeal time is extended to 60 days. After the notice of appeal has been filed, the clerk of the lower court notifies all other parties by mail of the notice’s having been filed. It is the date of the filing, however, not the date of the notice, which controls the timeliness of the appeal.

 

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Updates: Amended May 15, 1979, effective July 1, 1979 Amended May 29, 1986, effective July 1, 1986
Amended July 28, 1999, effective September 1, 1999

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