What Happens If I Miss The Deadline To File My Appeal?

In Indiana, there are thousands and thousands of trials and hearings each year. For litigants who lose on the merits in civil or criminal litigation, there are roughly 3,000 appeals taken to the Indiana Court of Appeals.¹ This is Indiana’s intermediate appellate court. The entire appellate process is laborious for the lawyers who handle appeals and time-consuming for the Court because three judges are assigned to review every case. As might be expected, there are comprehensive rules to ensure efficiency and consistency in the process because these appeals come from all of Indiana’s 92 counties. The one rule that can sometimes trip-up litigants who elect to appeal is timely perfecting an appeal, by filing a Notice of Appeal within 30 days of the final civil judgement² or within thirty days of sentencing in a criminal case. This blog explores what happens if you miss the deadline.

With civil matters, such as with a divorce or when a business sues a business, there will ultimately be a resolution by an agreement or trial before a judge or a jury. In Indiana civil cases, most courts have local rules that require the parties to mediate and try to settle the case. In a statistically significant number of cases, they resolve at mediation. While you may believe mediation is a waste of time and money, the court can order you to go to mediation even though you have the constitutional right to open access to courts.³ If this fails and you have a trial before a judge it may be tried over several non-consecutive days. With a jury trial, it will go on consecutive days after a jury is selected. That said, once the matter is decided on all issues, it becomes a final appealable order. At this time, the Notice of Appeal must be filed within thirty days to perfect the appeal with the $250 filing fee.

If the Notice of Appeal is not filed within this time, the appellant forfeits the appeal.⁴ This does not mean that the Court of Appeals does not have jurisdiction to decide the case; instead, the litigant forfeits his right to make an appeal. A common way this occurs is where a litigant files a motion to reconsider in the trial court to address what it believes is an incorrect order. However, unlike a Motion to Correct Error, this filing does not extend the time to file a Notice of Appeal. So if the trial court judge rules on the Motion to Reconsider on day 31, or does not rule at all, the right to appeal is forfeited if the Notice of Appeal is not filed within thirty days. However, the Indiana Supreme Court has made clear that although the party forfeits its right to appeal based on an untimely filing, it is not jurisdictional for the Court of Appeals. To have the Court of Appeals accept an untimely appeal, the party must show the Court of Appeals extraordinarily compelling reasons why the forfeited right to appeal should be restored. In essence, to prove this the Court of Appeals must conclude that a manifestly unjust result occurred—this constitutes “extraordinarily compelling reasons” and the Court of Appeals may then decide the case on the merits.⁵ Recognize however this is a very high burden and rarely met.

Criminal appeals are treated differently for untimely appeals than are civil appeals. The reason should be obvious. A criminal case that is typically appealed is one where the person loses his or her freedom and imprisoned, the ultimate power of the state. In criminal cases, if the defendant misses the deadline for filing a Notice of Appeal, he or she is provided with the right to petition the trial court for permission to file a belated notice of appeal. A defendant is eligible to request the trial court to file a belated notice of appeal of the conviction or the sentence if the defendant failed to file a timely notice of appeal; the failure to file a timely notice of appeal was not due to the fault of the defendant, and the defendant has been diligent in requesting permission to file a belated notice of appeal. There is no certain form for filing this request. If the trial court finds the noted elements are met, it shall allow the belated Notice of Appeal to be filed.⁶

If the right to file a belated Notice of Appeal is denied, this is appealable. On appeal, the Court of Appeals looks at several factors to determine if the trial court’s decision was erroneous. The Court looks at the defendant’s level of awareness of the procedural remedy of an appeal, his or her age, education, familiarity with the legal system, whether the defendant was informed of his appellate rights, and whether the defendant committed and act or omission which constituted delay. While this standard is not as rigid a those facing a civil litigant who forfeits his or her right and tries to get the case decided by the Court of Appeals, this too is a high burden. Even a defendant who is sentenced to a long prison term has to meet this showing in the trial court to obtain permission to file a belated Notice of Appeal.⁷

Ultimately, appeals are rare compared to the number of criminal and civil trials conducted in Indiana. If you are contemplating an appeal, or immediately upon conviction or adverse final order in a civil court, you should obtain skilled appellate counsel to assist you with navigating the complex waters of a civil or criminal appeal. This will ensure you do not forfeit your appeal and try to rely on one of these extreme remedies to have your case heard on appeal. Ciyou & Dixon, P.C. advocates handle appeals of all types from all trial courts in Indiana, as well as appeals to the Seventh Circuit Court of Appeals and the United States Supreme Court. This blog was written by Ciyou & Dixon, P.C. attorneys to provide you with general background information about appeals. It is not intended as specific legal advice or solicitation for services. It is an advertisement.

1. Court of Appeals of Indiana 2018 Annual Report.
2. Indiana Rule of Appellate Procedure 9(A)(1).
3. Fuchs v. Martin, 845 N.E.2d 1038 (2006).
4. Indiana Rule of Appellate Procedure 9(A)(5).
5. Cannon v. Cannon, 74 N.E.3d 255 (Ind.Ct.App.2017).
6. Indiana Rule of Post-Conviction Relief 2(1).
7. Moshenek v. State, 868 N.E.2d 419 (Ind.2007).