Writs

Appeals may only be taken from a final judgment in a criminal case and, as a result, a defendant must undergo the entire trial process before being allowed to appeal and, then, the appeal is limited to what happened at the trial. There are times, though, when a defendant may obtain some relief either before the conclusion of the entire trial process, or for reasons that do not appear in the trial record. The vehicle for such relief is called “extraordinary” writ relief. Such writs are obtained by the filing of a petition. There are several types of extraordinary writs for which a defendant may petition a higher court. We have already discussed three: a petition for a writ of review, a petition for a writ of supersedeas, and a petition for a writ of certiorari. Additional extraordinary writs are habeas corpus, mandate or sometimes called, mandamus, prohibition, error coram nobis, and error coram vobis. It does not matter whether the case is a felony criminal case or a misdemeanor, or whether it is a drug case, a domestic violence case, a DUI case, or any other type of criminal case (even under California’s 3-strikes law), a writ may benefit your criminal case if you’ve been charged with a crime.

If you or someone you love has been arrested or convicted of any crime, please contact the criminal defense lawyers at The Kavinoky Law Firm for immediate help.

Writ of Habeas Corpus

A writ of habeas corpus is an extraordinary writ that is used whenever a person is “unlawfully restrained.” The purpose of the writ is for some court to examine the lawfulness of the restraint of a defendant. “Restraint” has been interpreted broadly to include, not only a person incarcerated in prison or jail, but a person free on probation, and even a person who is only under a court order to pay a fine. “Unlawfulness” refers usually to a violation of some constitutional or statutory right. A writ of habeas corpus will only issue if a defendant has no other plain, adequate, and speedy remedy at law by which he can obtain his release from the restraint.

Unlike an appeal, habeas corpus is not limited to the trial record. In fact, remedying violations of law that occurred outside of the trial record are one use of habeas corpus. Examples of other uses of habeas corpus are: denial of bail or imposing excessive bail, denial of a defendant’s right to a speedy trial, failure of trial counsel to properly investigate a case or present a defense, failure of trial counsel to timely file a notice of appeal, new evidence of a defendant’s innocence not presented at trial, discovery that evidence presented by a prosecutor at trial was false, conditions of confinement in jail or prison, suppression by the prosecutor of evidence of a defendant’s innocence, and invalid or excessive sentences.

Petitioning a court for a writ of habeas corpus is a separate lawsuit, called “an original proceeding,” that is commenced by the defendant who “prosecutes” his or her claim. The defendant, now called a “petitioner,” must file a petition showing that he or she is restrained, the grounds why the restraint is unlawful, and that no other adequate remedy at law exists to relieve that unlawful restraint. In the petition, the petitioner must present all documents, declarations (declarations are written statements signed under penalty of perjury), sworn statements, and other evidence relied upon by the petitioner. Moreover, the petition must be verified by some person who is personally familiar with all of the facts.

Normally, a petition is presented to the trial court. If the petition is denied, it is then present to the court of appeal. If denied there, it is then present to the California Supreme Court. The denial of a petition for a writ of habeas corpus can never be appealed; a new petition must be filed with a higher court if denied in a lower court.

If a court to whom the petition has been presented concludes after a review of all of the evidence presented with the petition that a case for an unlawful restraint has been established, the court issues an order to show cause to the party restraining the petitioner. The order to show cause tells that party to either release the petitioner from the restraints or tell the court why such restraints are lawful. The restraining party then files a response called a “return,” in which the restraining party, now called the “respondent,” attempts to justify the restraint. The petitioner gets a chance to deny matters raised in the return by filing a “traverse” or “denial.”

After the pleading stage, the court conducts an evidentiary hearing, like a trial, but without a jury, at which the petitioner presents evidence to establish his claim of unlawful restraint. The court then decides whether to grant the relief that the petitioner seeks, and whether to release the petitioner from the restraint.

Writ of Mandate or Mandamus

A writ of mandate or mandamus is an order from a higher court to a lower court, some tribunal, or some administrative agency to do or not do an act that the laws imposes as a duty when no other plain, adequate, or speedy remedy is available at law. Just like petitioning for a writ of habeas corpus, the defendant becomes the petitioner and must file a verified petition setting forth all of the facts and grounds for the mandate order. Examples of the use of mandamus in criminal cases are: the setting aside of a driver’s license suspension by the Department of Motor Vehicles; reversing the denial by a trial court of a defendant’s request to exclude evidence obtained in violation of his or her right to be free from unlawful searches and seizures in a felony case; enforcing a defendant’s right to pretrial discovery (“discovery” is all of the evidence that the prosecutor has developed in a case against a defendant); compelling a trial court to dismiss a case when a defendant’s speedy trial rights have been denied; securing the substitution of one attorney for another when a defendant has hired a new attorney; disqualifying a judge who refuses to recuse himself or herself after showing prejudice and bias towards a defendant or his or her lawyer; and, compelling a court to reduce a felony to a misdemeanor after a preliminary hearing.

Writ of Prohibition

A writ of prohibition is an order to a court to restrain its proceedings when the threatened judicial action is outside of or in excess of the court’s jurisdiction. Like habeas corpus and mandamus, a petitioner must verify a petition in which facts which establish the grounds for the order are presented, including that no other plain, adequate, or speedy remedy at law is available. Examples of the use of prohibition are: preventing a case from proceeding to trial when the court has denied a defendant’s motion to dismiss an information filed in the superior court after a preliminary hearing at which a defendant has been held to answer on felony charges; reversing the denial of a defendant’s request to exclude evidence on the grounds of an unlawful search and seizure in a felony case; preventing a retrial that would be a violation of double jeopardy; preventing multiple prosecutions for the same act; terminating a prosecution under an statute that is unconstitutional; blocking a court order requiring a defendant to give the prosecution unauthorized or unenforceable discovery; and blocking a order of the juvenile court finding a juvenile unfit for juvenile court and certifiable for criminal proceedings as an adult.

Writs of Error Coram Nobis and Error Coram Vobis

The last of the extraordinary writs available to a criminal defendant are the writs of error coram nobis and error coram vobis. These are both the same type of writ; however, a petition for a writ of error coram nobis is addressed to the trial court and the petition for a writ of error coram vobis is addressed to a reviewing court.

These writs are available only to a defendant who can show that:

1. at the time of a judgment in a criminal case, an error of fact existed;
2. the fact does not appear in the record and does not involve the merits of the issues tried;
3. the fact was not introduced at trial because it was not discovered at that time without any fault or negligence of the defendant or because of duress, fraud, or excusable mistake; and
4. knowledge of the fact would have prevented the rendition of the judgment by the trial court.

The petition must be brought within a reasonable time after the judgment has been entered by the trial court. Like all of the previous writs, the petition must set forth the facts that give rise to the grounds for granting the petition and it must be verified by a person who has personal knowledge of all of the facts in the matter. Examples of the use of error coram nobis or vobis are: to withdraw after judgment of a guilty plea wrongfully induced; to vacate a judgment of guilt when a defendant was under age and this fact was not known at the trial; to vacate a judgment after a guilty plea subjected a defendant to deportation and this consequence was not known at trial; to vacate a judgment when the police suppressed material evidence; and to vacate a judgment when the prosecution suppressed evidence that was favorable to the defense or that was ordered to be produced at trial by the court, or when there was perjury by the prosecution. If a writ is obtained from the court, the judgment is vacated and the defendant once again must answer the criminal charges.

These writs comprise the main extraordinary writs that are available to a defendant who is either facing criminal charges or who has been convicted of a crime. The Kavinoky Law Firm can help with any type of criminal appeal. If you are in need of a criminal defense appellate lawyer, please don’t hesitate to call on us.