An interlocutory appeal is one that is filed prior to a final judgment is entered. In most criminal cases, this will mean filing a petition for permission to appeal an order entered prior to either the trial court’s sentencing order or an order dismissing the case.
Permission to appeal an interlocutory order is not automatically granted, as it is not considered to be an appeal “as of right.” The initial petition for permission must convince the appellate court to take the appeal, and can therefore be as important or more important than the formal briefing on appeal.
Rule 5 of the Utah Rules of Appellate Procedure governs the process and substance of the initial petition for permission to file an interlocutory appeal. This article is based on Rule 5 effective as of November 1, 2023.
Deadline for Filing Petition for Permission
The petition for permission to appeal from an interlocutory order must be filed with the appellate court within 21 days after the trial court enters its order. Unlike an ordinary notice of appeal which is filed with the trial court, the petition for permission must be filed directly with the appellate court with proper jurisdiction over the case. Depending on the nature of the charges filed in the case, this will be either the Utah Supreme Court or Utah Court of Appeals.
Service of the Petition – Deadline & Parties
Rule 5 requires that service of the initial petition be made “on all other parties to the action” within the same 21-day period after entry of the trial court’s interlocutory order.
In criminal cases originally charged at the felony level, the petition must be served on the Criminal Appeals Division of the Office of the Utah Attorney General — even if the Attorney General was not involved in the district court or juvenile court proceedings. Often, this will mean serving the petition on both the County Attorney or District Attorney as well as the Attorney General.
Contents of the Petition
Rule 5 provides a list of elements that must be included in the petition. Following the requirements of the Rule is critical. The following is only a summary of key elements. Refer directly to the Rule to ensure all requirements are met.
- statement of facts relevant to determining the legal question raised;
- the legal issue presented and its context in the case, “but without unnecessary detail”;
- demonstration that the issue was preserved in the trial court;
- statement of the applicable standard of appellate review, with citation to supporting authority for the standard;
- explanation of reasons why an immediate interlocutory appeal should be permitted, including a “concise analysis” of relevant statutes, rules, or case law;
- statement of reasons why the appeal “may material advance the termination of the litigation.
The initial petition for permission must include a copy of the trial court’s order which would be the subject of the appeal along with any findings of fact, conclusions of law, and opinion from the trial court.
Length Limitation
The petition for permission to appeal is limited to a maximum of 20 pages – significantly less than what is allowed in full briefing on appeal. Therefore, precision and brevity in writing are critical. There is no room for rambling explanations or arguments.
Responding to a Petition for Permission
The appellate court will not receive any response to the initial petition unless it first requests a response from the opposing party. But a petition for permission to appeal will not be granted unless the appellate court first requests a response.
In other words, the appellate court can deny the petition without any response from the opposing party but cannot grant the petition unless the opposing party has had an opportunity to respond.
Similarly, the appellate court will not receive a reply to the opposing response unless a reply is specifically requested by the court.
No Oral Argument on the Petition
The appellate court normally will decide whether to grant permission to appeal an interlocutory order based only on the written petition, response, and reply. Oral arguments on the initial petition are very rare.
If Permission to Appeal is Granted:
Following are some key points to consider if the permission to appeal is granted.
Stays in the Trial Court
If the appellate court grants permission to appeal the interlocutory order, then all proceedings in the trial court will be stayed (put on hold) until the appeal is determined.
Note, however, that there is no mandatory stay in the trial court while the petition for permission is being filed or considered. The trial court can move the case forward until or unless the appellate court grants permission to appeal.
Record on Appeal
If permission is granted, then the trial court (district court) will prepare the formal record on appeal. However, the party initiating the appeal must request/order the preparation of transcripts from any relevant hearings or proceedings in the trial court.
Formal Briefing of the Case and Argument
Regular briefing and argument will be ordered if permission is granted. Most other regular appeal requirements (time limits, length limitations, etc.) will apply. One exception is that no formal docketing statement is required unless otherwise ordered by the court. The petition for permission functions as a timely filing and docketing of the appeal.
Special Note: Appealing Denial of a Motion to Quash Bindover
In a felony criminal case, review of a bindover order or denial of a motion to quash bindover must be filed as an interlocutory appeal. Utah case law establishes that any error in the bindover decision is rendered moot by a guilty verdict at trial. Therefore, any appellate review of bindover orders must be initiated with a petition for permission to appeal the interlocutory order.