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Waiving an Issue on Appeal and Missing an Appellate Deadline

How to Fix the Unfixable: Waiving an Issue on Appeal and Missing an Appellate Deadline

For the most part, the legal system is structured to allow freedom of choice in picking your attorney, much like the medical system allows you to pick your doctor.  Different professionals in each field fit and fill different needs.

However, sometimes there is the wrong choice of fit and, within the legal field, an attorney waives an issue at trial that is necessary for the appeal or misses the appellate deadline.  This blog covers some rare appellate remedies that might apply in the right type of case.

First, with criminal cases, the failure to initiate a timely appeal by filing a Notice of Appeal often goes to freedom rights and a defendant being stripped of core civil liberties, such as the right to vote, sit on a jury, hold elected office, or keep and bear arms.  For this reason, there are appellate rules to all for belated (untimely) appeal to be filed.

Second, in civil cases—although extremely rare—the Court of Appeals has jurisdiction to take the appeal.  A close reading of the rules shows that missing the appellate filing deadline does not divest the Court of Appeals of Jurisdiction. Instead, the appellate forfeits the appeal.  This means in an extraordinary case the Court of Appeals could take the case if it deems the issue one that must be addressed.

Third, although a rarity in civil appeals, the fundamental error doctrine allows the Court of Appeals to address a waived issue.  This is more common in criminal appeals and is generally based on a constitutional violation.

Thus, the Indiana Rules of Appellate Procedure and caselaw of the Indiana Court of Appeals and Indiana Supreme Court provide these courts with the legal flexibility to provide access to the Court and due process of law.  While most cases will not fit within these narrow exceptions, there is judicial relief in many cases, although these Court also balance the rule of finality which means a case decided and beyond normal appeal should normally stay that way.

This blog post was written by attorneys at Ciyou & Dixon, P.C.  Ciyou & Dixon, P.C. advocates handle appeals in the Indiana Court of Appeals, Indiana Supreme Court, Seventh Circuit Court of Appeals and United States Supreme Court.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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