CHAPTER 40

APPEALS

§ 40.01 Defense Appeals as of Right - Appealable

Orders and Judgments

§ 40.02 - Advice to the Defendant

§ 40.03 - Notice of Appeal

§ 40.04 Interlocutory and Collateral Final Order Appeals -

Rule 5(b) Appeals

§ 40.05 - Rule 5.1 Appeals

§ 40.06 - Procedure After Permission To Appeal

§ 40.07 Prosecution Appeals - Final Judgment Appeals

§ 40.08 - Interlocutory Appeals

§ 40.09 - Review by Petition for Extraordinary Relief

§ 40.10 The Initial Stages

§ 40.11 - Representation on Appeal

§ 40.12 Transcript Order

§ 40.13 - The Docketing Statement

§ 40.14 - Motion for Stay of Execution of Sentence

and Bail Pending Appeal

§ 40.15 Assembly and Completion of the Record

§ 40.16 - Documents and Exhibits

§ 40.17 - Transcripts and Transcript Substitutes

§ 40.18 - Notice of the Completion of the Record

§ 40.19 The Printed Case

§ 40.20 The Briefs - Filing

§ 40.21 - Contents

§ 40.22 Deadlines in General

§ 40.23 Oral Argument

§ 40.24 The Rocket Docket

§ 40.25 Supplemental Authorities

§ 40.26 The Decision

§ 40.27 Motions for Reargument

§ 40.28 Appellate Plea-Bargaining

§ 40.29 Issuance of the Mandate

§ 40.01

Defense Appeals as of Right - Appealable Orders and Judgments

The defendant has an absolute right to appeal to the Vermont Supreme Court from any final judgment in a criminal case.{1} For a defendant seeking review of a conviction, "final judgment" means the sentence.{2} The same absolute right of appeal applies to final postsentence orders, including sentence reconsideration orders under V.R.Cr.P. 35,{3} orders revoking or modifying probation under V.R.Cr.P. 32.1,{4} and orders denying collateral relief applications such as habeas corpus and postconviction relief petitions.{5}

The prosecution has more limited rights to appeal from final judgments and orders.{6}

§ 40.02

- Advice to the Defendant

When the judge announces the sentence after a trial conviction, she is required to notify the defendant of his right to appeal.{7} Court advice is not explicitly mandated in other situations where the defendant has a right of appeal, but trial counsel has a duty to advise, even if counsel does not intend to prosecute the appeal (and even if counsel opposes it){8} and a responsibility to take the necessary preliminary steps to preserve the right.{9}

§ 40.03

- Notice of Appeal

Final judgment appeals are taken by notice of appeal, a formal document that identifies the appealing party, the court to which the appeal is taken (always the Vermont Supreme Court), and the order or judgment from which the appeal is taken, by date.{10} It bears the caption of the lower court, and should read something like this:

PLEASE TAKE NOTICE that the defendant hereby appeals to the Supreme Court from the [judgment or order] entered herein on [date].

If the appeal includes postjudgment orders (such as denial of a motion for new trial, or to withdraw a guilty plea), the notice should specifically designate those orders as well as the judgment of conviction.{11}

The notice must be filed within thirty days after the judgment or order appealed from,{12} which, in an appeal from a conviction, means the sentence and not the entry of verdict or plea. If the defendant files a timely motion for a new trial,{13} for judgment of acquittal,{14} or in arrest of judgment,{15} before the thirty-day period has run, the appeal period runs from the date the motion is denied.{16}

In limited circumstances the judge can extend the period for another thirty days.{17}

The thirty-day appeal period is "jurisdictional" and missing it will be fatal to the appeal unless it has been tolled or extended.{18} The period runs from the date of entry, even if the defendant has not been informed of the entry, inasmuch as "[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed. . . ."{19}

The original of the notice goes to the lower court clerk, with copies to the supreme court clerk and the prosecutor.{20}

§ 40.04

Interlocutory and Collateral Final Order Appeals -

Rule 5(b) Appeals

Interlocutory orders are appealable under V.R.A.P. 5(b) by motion and order. Rulings that terminate a case, such as an order dismissing the information without prejudice, are final, not interlocutory, and are not governed by Rule 5.{21}

The motion, which has to be filed within ten days after entry of the order, should allege that the order "[1] involves a controlling question of law [2] as to which there is a substantial ground for difference of opinion and [3] that an immediate appeal may materially advance the termination of the litigation[,]"{22} and why.

All three of these criteria must be satisfied before permission may be granted.{23} The supreme court tends to view its interlocutory appeal jurisdiction narrowly, as "an exception to the normal restriction of appellate jurisdiction to the review of final judgments[,]"{24} and it is less likely to accept such appeals than it used to be.{25}

The first criterion, that there be "controlling" question of law, "would seem, at a minimum, to require that reversal result in an immediate effect on the course of the litigation and in some savings of resources either to the court system or to the litigants."{26} Interlocutory appeal is not appropriate when reversal of a pretrial ruling would not have that effect.{27} Appealed rulings do not involve controlling questions of law when their resolution depends on the facts to be adduced at trial.{28} When the facts are subject to change, as in a ruling admitting evidence on an offer of proof which may not materialize, the case will not be deemed ripe.{29}

The second criterion - substantial ground for difference of opinion - requires the trial judge to believe that a "reasonable appellate judge" would vote to reverse.{30} The third criterion - advancing the termination of the litigation - requires a balancing of appellate delays against trial court savings.{31}

The importance of the legal issue may be a factor favoring appeal{32} although it is not a statutory criterion. It can also cut the other way because (as the Vermont Supreme Court said in one case) "the importance of the questions makes it more imperative that full factual development underlie our review."{33}

Rule 5(b) does not require that the appealed question of law be "certified" to the supreme court,{34} although case law holds that the question should be set out in the motion and the order granting it.{35} The scope of the supreme court's review will not, however, be limited by the trial judge's formulation: "the stated question in an interlocutory appeal `is for the aid of the Court and the parties in identifying the issues presented without limiting consideration to the trial judge's view of the case. It is a landmark, not a boundary . . . .'"{36}

The order granting or denying the motion should include "a statement of the grounds upon which appeal has been permitted or denied."{37} If the motion is denied, the rule allows for refiling in the supreme court,{38} but the supreme court will reverse a denial only for abuse of discretion.{39} If the motion is granted, the supreme court can dismiss it as improvidently granted, but a grant, like a denial, is reversible only for abuse of discretion.{40}

§ 40.05

- Rule 5.1 Appeals

A "collateral final order" is one which "conclusively determines a disputed question, resolves an important issue completely separate from the merits of the action, and will be effectively unreviewable on appeal from a final judgment."{41} An order refusing to transfer a juvenile's case from district court to family court is an example of such an order.{42} On the other hand, the Vermont Supreme Court held that a pretrial order holding the defendant competent to stand trial failed to meet the first criterion because it was subject to change;{43} that a preliminary order in a CHINS case releasing a child from temporary detention failed to meet the second;{44} and that an order requiring a defense investigator to turn over interview notes to the prosecution failed to meet the third.{45} Most discovery orders will also fail to meet the rule's criteria for appeal, and a party or nonparty resisting discovery on a claim of privilege will generally have to prove its "sincerity" by risking a contempt sanction (and appealing from that).{46}

An order that fits the definition of a collateral final order is appealable, although not as a matter of absolute right,{47} on the defendant's motion{48} filed within ten days of its entry.{49}

An order granting the appeal should contain a statement of the grounds.

If permission to appeal is denied, the appellant can reapply to the supreme court within ten days after the denial.{50} When the appeal is granted the appellee may move to dismiss it as improvidently granted.{51}

The granting of an appeal does not operate as an automatic stay of trial court proceedings,{52} and the appellee can move in the supreme court to vacate any stay that the trial judge has granted.{53}

§ 40.06

- Procedure After Permission To Appeal

The procedure under V.R.A.P. 5 and 5.1 after the appeal is granted generally follows the same course as final order appeals pursuant to V.R.A.P. 3 and 4, discussed below:{54} counsel must promptly order a transcript, file a docketing statement, and see to it that the defendant has representation. There is no need for a notice of appeal (the order granting the appeal substitutes for the notice). The rules do not appear to require a new assignment of appellate counsel in Rule 5 and 5.1 cases.

§ 40.07

Prosecution Appeals - Final Judgment Appeals

The prosecution's right of appeal from a final judgment in a criminal case is limited by double jeopardy considerations. For example, there can be no appeal after a jury acquittal, or from a judge's order granting a motion for judgment of acquittal.{55}

By statute in felony cases the prosecution can appeal an order dismissing all or part of the information or indictment.{56} The appeal may be taken by a notice of appeal (the motion and certification requirements for the state's interlocutory appeals - see § 40.08 below - do not apply to such final judgment appeals),{57} but the notice must be filed within seven days of the dismissal.{58}

The prosecution has no right to appeal from a final judgment in a misdemeanor case.{59}

§ 40.08

- Interlocutory Appeals

Interlocutory appeals by the state in misdemeanor cases are governed by the same three criteria applicable to other appellants under V.R.A.P. 5(b)(1).{60}

In felony cases, however, the prosecution has an appeal as of right from pretrial orders granting a motion to suppress evidence, or to exclude a confession, or "granting or refusing to grant other relief where the effect is to impede seriously, although not to foreclose completely, continuation of the prosecution;" if the prosecutor "certifies that the appeal is not taken for purposes of delay and that the evidence suppressed or declared inadmissible is substantial proof of a fact material in the proceeding or the relief to be sought on appeal is necessary to avoid seriously impeding such proceeding."{61} Although appeals are mandatory in such cases, the prosecution must signal its intent by motion as in other Rule 5 cases; a notice of appeal is insufficient.{62} Furthermore, the court is not bound to accept the state's certification at face value. In State v. Dubois{63} the Vermont Supreme Court dismissed a prosecution appeal from the denial of its motion in limine in a sexual assault case. Given the uncertainty of the evidentiary context, the court wrote it would reverse the denial of a motion in limine "[o]nly in the clearest case of abuse of discretion. . . ."{64} The case was therefore not appropriate for interlocutory review, and although the state had certified, pursuant to the rule, that the ruling seriously impeded the prosecution, "it failed to make any specific allegations why a delay of evidentiary rulings until trial would have this effect." Granting the appeal was error "[i]n the absence of a detailed statement of reasons for the conclusory certification. . . ."{65}

Like other Rule 5(b) appellants, the state must file its motion within ten days.{66}

§ 40.09

- Review by Petition for Extraordinary Relief

A prosecution appeal which is not permitted by 13 V.S.A. § 7403 is not permitted at all, inasmuch as that statute provides the sole authority for appeals by the state in criminal cases.{67} Even so, in situations not covered by the statute, the state can sometimes obtain review by petition for extraordinary relief,{68} or its notice of appeal may be treated as such a petition, so long as an appeal does not violate double jeopardy,{69} but the state must show "more than a mere inability to secure ordinary review. . . ."{70} Petitions for extraordinary relief should ordinarily be filed in superior court,{71} and the scope of the remedy is discussed in § 41.08.

§ 40.10

The Initial Stages

Within a short period after filing notice of appeal or (in Rule 5 and 5.1 cases) after the order granting permission to appeal, counsel must take a number of steps. Transcript orders and a docketing statement must be filed. In appropriate cases defense counsel should also file a motion for stay of execution of sentence or for bail pending appeal, and either enter her appearance as counsel on appeal or make arrangements for other appellate counsel. The most important deadlines are as follows:

Notice of appeal: Thirty days after entry of judgment, seven days for the state.

Motion for permission to appeal: Ten days after entry.

Request for assignment of appellate counsel: Thirty days after entry, with the notice of appeal.

Transcript orders: appellant - ten days after notice of appeal or order granting permission; appellee - ten days after service of appellant's docketing statement.

Docketing statement: appellant - ten days after notice of appeal or order granting permission; appellee - ten days after appellant's.

§ 40.11

- Representation on Appeal

Retained counsel should request permission to withdraw in the district court if she is not going to continue representation on appeal{72} or file a notice of appearance in the supreme court if she is.

If the defendant wants assigned counsel on appeal, counsel must file a specific application in the trial court, with the notice of appeal, with copies to the supreme court and to the other side.{73} The rule requires a specific assignment of appellate counsel even if counsel has already been assigned for the trial court proceedings. The trial judge is supposed to rule on it within five days.{74}

§ 40.12

- Transcript Order

The transcript order must be filed within ten days of the notice of appeal,{75} or ten days after an order on the defendant's request for assigned appellate counsel, whichever is later.{76}

It is the appellant's duty to specify the transcripts which she thinks will be necessary for the appeal. Counsel can obtain a list of the hearings from the trial court clerk. The request must be made on a prescribed order form{76.5} directly and separately to each stenographer or (if the hearing was taped) transcriber, with copies of the form going to the trial court clerk, the supreme court clerk, and the prosecutor.{77}

It is often not clear at this early stage of the appeal which transcripts can be dispensed with. Especially in cases where new counsel will take over the appeal, trial counsel should err on the side of overinclusion. For defendants who may claim on appeal that essential procedures were not followed (e.g., a personal waiver or a judicial finding), it may well be necessary to order all transcripts. Counsel often will not need to order hearings on pretrial motions which were granted, or voir dire proceedings when there have been no preserved objections.

a. Late Transcript Requests

An appellant who discovers, after making her initial transcript order, that additional transcripts are going to be necessary, faces procedural obstacles. Up to the date that the printed case is initially due (i.e., ten days after notice of the completion of the record), the appellant can order additional transcripts "by leave of the Court or by written consent of the adverse party," while after that date she can do so "only by order of the Court for good cause shown."{78}

b. Appellee's Transcript Requests

If the other side thinks that additional transcripts will be necessary, it must file and serve a designation of what it wants included within ten days after being served with the appellant's docketing statement.{79} The appellee can order its own transcripts without leave until the record has been completed. Between that date and the date its brief is initially due it may order them by court permission or with the other side's written consent; thereafter it needs a court order for good cause shown.{80}

§ 40.13

- The Docketing Statement

Both appellants and appellees must file docketing statements - appellants within ten days of the notice of appeal, and appellees within ten days after the appellants',{81} on forms which can be obtained from the court clerk.{82} The form calls for basic information about the case and asks counsel to attach relevant documents.

Counsel is also required to compile a list of "every recorded hearing" in the case (the list should be available from the trial court clerk),{83} specifying whether a transcript is necessary and when it was ordered.{84}

Counsel must also include a statement of issues to be raised on appeal.{85} The listing is not preclusive, but counsel should err on the side of overinclusion here as well.

Finally, the docketing statement form asks whether the appellant wants a settlement conference, waives oral argument, or deems the case appropriate for expedited disposition. In general, unless the trial lawyer is going to be handling the appeal herself and knows precisely what she is going to argue, the answer to all three questions should be "No."

§ 40.14

- Motion for Stay of Execution of Sentence

and Bail Pending Appeal

Even before the notice of appeal has been filed, the trial judge can order a stay of execution of sentence pending appeal (the stay is mandatory for prison sentences in certain misdemeanors) and set conditions of release.{86} Both stay and conditions of release orders are reviewable in the supreme court, but only for abuse of discretion.{87}

§ 40.15

Assembly and Completion of the Record

The record on appeal consists of the ordered transcripts and the documents and exhibits on file in the lower court, plus a certified copy of the lower court's docket entries.{88}

§ 40.16

- Documents and Exhibits

Within fifteen days of the notice of appeal, and after the transcript requests have been filed, the lower court clerk transfers the court file - that is, the nontranscript parts of the record - to the supreme court, along with a list of the documents sent.{89} The clerk will not forward "[d]ocuments of unusual bulk or weight and physical exhibits other than documents" unless a party specifically asks for them.{90} Although the clerk has primary responsibility for these tasks, the appellant is required to take "any . . . action necessary to enable the clerk to assemble and transmit the record."{91}

§ 40.17

- Transcripts and Transcript Substitutes

As each transcript is completed the reporter sends it directly to the party that ordered it, with a notice of its completion to the supreme court and the other side.{92} The rules do not provide any deadlines and delays can be lengthy. Counsel wanting a speedy completion of the record should call the reporter directly, ask the court administrator's office to intervene, or move the supreme court for an order requiring transcripts by a given date.

a. Lost Transcripts and Transcript Substitutes

For any of a number of reasons transcripts may not be available: notes or tapes turn up missing, a stenographer moves out of state leaving no address, and so on. "[I]f anything material to either party is omitted from the record by error or accident or is misstated therein," the parties can correct the record by stipulation, or the trial or supreme court (by motion or sua sponte) may "direct that the omission or misstatement be corrected. . . ."{93}

Although the great majority of criminal appeals are based on transcripts, the rules set forth procedures for agreed and judge-approved statements of the evidence in lieu of a transcript.{94} These substitutes offer savings in cost and time. Because they make it impossible for a new attorney to review the evidence, reformulate issues, and search the record for plain error, the transcript substitution procedures should be resorted to only in simple cases, and only when trial counsel will be handling the appeal.

b. The Right to an Adequate Record

The due process guarantee of effective assistance of counsel on appeal includes the right to an adequate appellate record, which means a transcript when a transcript is necessary to an effective appeal, at state expense if the defendant cannot afford it.{95} The public defender statute{96} and the supreme court's in forma pauperis rules reiterate this guarantee.{97} Inability to furnish a part of the transcript due to loss of notes or tapes may require reversal,{98} but an appellant seeking such relief must show that the loss prevents an effective appeal and that reasonable substitutes by the means provided in V.R.A.P. 10 are not practicable.{99}

§ 40.18

- Notice of the Completion of the Record

When all transcripts have been completed, the supreme court clerk (who has received notice of each) notifies all parties by letter of the completion of the record.{100} This notice starts the clock running for the filing of the printed case and briefs.

§ 40.19

The Printed Case

Ten days after notice of the completion of the record, the appellant must file a "printed case": a compilation of "such extracts of the record as are necessary to present fully the questions raised. . . ."{101} The printed case must include the docket entries; the pleadings (i.e., in an appeal from a criminal conviction, the information or indictment); "any relevant portions of the . . . evidence, charge, findings, or opinion; the judgment, order or decision in question; and . . . any other parts of the record to which the parties wish to direct the particular attention of the Court."{102} The printed case does not restrict the record on appeal,{103} nor can it be used to expand the record: inclusion of nonrecord documents violates the rule and the supreme court will grant a motion to strike.{104}

§ 40.20

The Briefs - Filing

The appellant's brief is due thirty days after notice of the completion of the record;{105} the time can be extended another thirty days by stipulation,{106} and thereafter only by motion.{107}

The appellee's brief is due twenty-one days after the appellant's{108} with a twenty-one-day extension by stipulation and further extension by motion.{109}

The appellant may file a reply brief within ten days after service of the appellee's brief.{110}

§ 40.21

- Contents

The appellant's brief should contain the following sections "under appropriate headings and in the order here indicated[,]"{111} although the court has been indulgent about minor idiosyncracies.

(1) A table of contents and a table of cases (alphabetically arranged), statutes, and other authorities cited.

(2) A concise statement of the case, including the subject of the litigation, the claims of the parties, the facts of the case and proceedings below, and the appellant's specific claims of error, with appropriate references to the record.

(3) A statement of the issues presented for review.

(4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.

(5) A short conclusion stating the precise relief sought.

The appellee's brief must include the same sections, minus the last; it can also omit statements of the issues and of the case if the appellant's are satisfactory.{112}

The page limits are thirty for the principal briefs, and fifteen for reply briefs, exclusive of tables and addenda.{113}

§ 40.22

Deadlines in General

Starting in the late-1980s the Vermont Supreme Court launched a major effort to clear out a backlog of hundreds of cases and to shorten the "turn-around time" for appeals.{114} The court's determination to supervise its docket more actively produced the docketing statement and transcript-order rules and the rule limiting stipulated extensions of time, discussed above.{115} While the court retains full discretion to extend most deadlines,{116} it now does so only reluctantly and only for good cause. Orders granting extensions commonly specify that no further extensions will be allowed and that sanctions may be imposed for noncompliance.

The statutory deadlines can also be shortened. The court has general authority to suspend the rules "[i]n the interest of expediting decision, or for other good cause shown," and to "order proceedings in accordance with its direction."{117} V.R.A.P. 33(c) gives it specific authority to make an order "directing that the matter be submitted on an expedited briefing schedule or limited oral argument or both." Based on the preliminary information provided by docketing statements, the court occasionally singles out cases, which it deems either meritless or in need of particularly fast action, for expedited briefing and argument.{118}

§ 40.23

Oral Argument

A case is deemed ripe for argument when a reply brief has been filed or the time for filing one has expired.{119} The court by a form letter commonly encourages counsel to waive argument, setting a date by which argument must be requested and offering the incentive of a speedy decision. Defense counsel should be wary of such blandishments because the odds against winning are heavily in the prosecution's favor and waiving oral argument may cost a valuable opportunity to catch the court's attention.

Cases in which argument has not been waived appear on a calendar which the supreme court docket clerk mails to all counsel, listing the date and time of argument and the amount of time each side has been allotted.

Except for fast-track cases discussed below, all arguments are heard by the full five-member court. The court usually allows fifteen minutes for each side, or thirty minutes in exceptional cases;{120} counsel can request additional time by motion or by letter to the clerk.{121}

§ 40.24

The Rocket Docket

V.R.A.P. 33.1, setting up summary appeal procedures, has been the court's weapon of choice in its war against the backlog. The rule provides that "[i]n any case, the Court, if all members not disqualified agree, may order that the matter be set for oral argument before a panel of three justices."{122} Cases selected for this treatment are allotted five minutes argument time for each side.

"Nonbinding" guidelines promulgated simultaneously with the rule spell out circumstances in which fast-track treatment may not be appropriate:

(a) The Court may be establishing a new rule of law, altering or modifying an existing rule, or applying an established rule to a novel fact situation.

(b) The matter on appeal involves a legal issue of substantial public interest.

(c) The Court may be criticizing existing law.

(d) The Court may be resolving a conflict or apparent conflict of authority between panels of the Court.{123}

In 1991 and 1992 about 45 percent of the court's decisions were by these "rocket docket" three-justice panels.{124}

The screening process which selects a case for the rocket docket may betoken a decision on the merits - generally a decision against the appellant - although the court solemnly asserts otherwise. Technically speaking, fast-tracking a case only signals a judgment by the court's administrative staff and the screening justice that the case can be decided easily and uncontroversially,{125} but easy, uncontroversial decisions usually go in favor of appellees, on failure-to-preserve or harmless error grounds. Statistically speaking, the court almost never reverses a conviction in a fast-track appeal, and has never done so in a serious case.

In some or all rocket docket cases, a draft opinion is circulated among the panel before argument which (if no minds are changed by the five-minute arguments) will be signed and released soon after.

Summary disposition under Rule 33.1 requires a unanimous panel. If any of the three justices dissents, the panel must direct reargument before the full court.{126}

§ 40.25

Supplemental Authorities

After the briefs are filed, and until the opinion comes down, counsel can send the court letters citing "pertinent and significant authorities" which have come to counsel's attention{127} - either new law, or old law which counsel failed to cite in her brief. The supplemental authority letter is supposed to be merely informative, not argumentative.{128}

§ 40.26

The Decision

Rocket docket cases, and cases in which oral argument has been waived, are generally decided within days of the argument. Otherwise the decision can take weeks or months.

Full-dress opinions are handed down on Fridays. The clerk advises counsel by phone, and the opinion is made available to the press the following Monday.

The most disturbing byproduct of the court's summary disposition practices has been an erosion in the quality of its opinions. A majority of criminal appeals is now decided by brief per curiam opinions, usually unanimous, usually unpublished, and usually (at least in the losing side's view) infuriatingly superficial.{129}

§ 40.27

Motions for Reargument

The losing side can move for reargument within fourteen days after entry of the decision.{130} The motion should "state with particularity the points of law or fact, presented in the briefs upon the original argument, which in the opinion of the moving party the Court has overlooked or misapprehended and which would probably affect the result."{131} No response is permitted unless the court asks for one.

Motions for reargument are usually but not invariably denied, usually without a hearing or much if anything in the way of an opinion.

§ 40.28

Appellate Plea-Bargaining

Before or after briefing the parties can stipulate to some or all of the relief which the appellant is asking for, or to dismissal on agreed terms.{132} This allows for a form of appellate plea-bargaining, by which the appellant can obtain sentence or charge concessions.

The stipulation can ask the court to reverse the conviction and remand, or to reverse, vacate sentence, and enter conviction for a lesser-included offense.

Other types of agreement require a remand. The supreme court will not itself reduce a sentence, or enter a conviction for a lesser but not technically lesser-included offense, nor will it order the trial judge to do so, but it will remand the case to permit the trial court to approve settlements of this sort. An agreement to reduce a sentence from one to five years to one to two years might read as follows:

IT IS HEREBY STIPULATED AGREED, by and between the attorneys for the parties hereto and subject to this Court's approval,

1. That the sentence imposed herein of 1-5 years be vacated;

2. That the case be remanded to the trial court for imposition of a sentence of 1-2 years;

3. That upon resentencing in accordance with the terms of this stipulation this appeal may be dismissed.

4. The parties propose the following entry order:

Sentence vacated and case remanded for resentencing pursuant to the stipulation of the parties.

§ 40.29

Issuance of the Mandate

The court's mandate - a certified copy of the opinion and entry - issues to the lower court twenty-one days after the opinion is handed down, or seven days after denial of a motion for reargument, unless the time is extended or shortened on motion.{133} When a conviction is reversed, an incarcerated defendant will be entitled to bail only after the mandate issues, and counsel should move for an order issuing the mandate "forthwith." When the conviction is affirmed, stayed sentences (and stayed license suspensions in DUI and DLS cases) will take effect after the twenty-one-day grace period.

1. 13 V.S.A. § 7401; State v. Buck, 139 Vt. 310, 314-15 (1981). There is no right of appeal to the supreme court from noncriminal traffic bureau adjudications. State v. Obomsawin and Thomas, No. 92-395 (Aug. 14, 1992) (unpublished).

2. V.R.Cr.P. 32(b).

3. See §§ 37.21-37.24.

4. 28 V.S.A. § 302(b).

5. See §§ 41.01-41.04.

6. See § 40.07.

7. V.R.Cr.P. 32(a)(2).

8. A.O. 4 § 4(c).

9. A.O. 4 § 4(c).

10. V.R.A.P. 3(d).

11. V.R.A.P. 3(d); State v. Wisell, 136 Vt. 541, 542 (1978).

12. V.R.A.P. 4.

13. V.R.Cr.P. 33.

14. V.R.Cr.P. 29(c).

15. V.R.Cr.P. 34.

16. V.R.A.P. 4.

17. Before the appeal period expires the judge can allow another thirty days "for good cause. . . ." On motion made within thirty days after the initial period has expired she can allow a late notice on a showing of "excusable neglect. . . ." V.R.A.P. 4.

18. In re Stevens, 149 Vt. 199, 200 (1987); State v. Savo, 136 Vt. 330 (1978). The defendant's remedy is a request for reinstatement, based on her attorney's ineffective assistance. In re Savo, 139 Vt. 527 (1981). See § 6.25.

19. In re Stevens, 149 Vt. 199, 200 (1987) (quoting V.R.C.P. 77(d)).

20. V.R.A.P. 3(b).

21. State v. Budzinski, No. 87-580 (Vt. Jan. 29, 1988) (unpublished).

22. V.R.A.P. 5(b)(1).

23. State v. Pelican, 154 Vt. 496, 501 (1990); State v. Wheel, 148 Vt. 439, 440 (1987); In re Pyramid Co., 141 Vt. 294, 301 (1982).

24. In re Pyramid Co., 141 Vt. 294, 300 (1982).

25. J. Dooley, The Vermont Supreme Court in 1993 - An Update, 19 Vt. B.J. 9, 11-12 (Feb. 1993) (hereinafter "Dooley") (in response to caseload pressures supreme court now dismisses many interlocutory appeals as improvidently granted).

26. In re Pyramid Co., 141 Vt. 294, 303 (1982) (quoting Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607, 618 (1975)).

27. State v. Wheel, 148 Vt. 439, 441 (1987) (error in inquest proceedings would not provide a defense to false swearing charge).

28. In re Pyramid Co., 141 Vt. 294, 304 (1982).

29. State v. McCann, 149 Vt. 147, 152 (1987).

30. In re Pyramid Co., 141 Vt. 294, 307 (1982).

31. In re Pyramid Co., 141 Vt. 294, 305 (1982).

32. See State v. Jenne, 156 Vt. 283, 288-89 (1991) (challenge to county's jury selection procedures; court accepts interlocutory appeal despite doubt whether case met any of V.R.A.P. 5(b)'s requirements).

33. State v. McCann, 149 Vt. 147, 152 (1987).

34. Compare V.R.A.P. 5(a) (a seldom-used procedure for appeals by agreement, when at least one possible disposition of the appeal would result in final judgment for the defendant).

35. State v. Carpenter, 138 Vt. 140, 144 (1980); Lyon v. Bennington College Corp., 137 Vt. 135, 136 (1979).

36. State v. Dreibelbis, 147 Vt. 98, 99-100 (1986) (quoting State v. Carpenter, 138 Vt. 140, 146 (1980)).

37. V.R.A.P. 5(b)(1).

38. V.R.A.P. 5(b)(1).

39. State v. McCann, 149 Vt. 147, 151 (1987).

40. State v. Pelican, 154 Vt. 496, 502 (1990).

41. V.R.A.P. 5.1(a). See State v. Lafayette, 148 Vt. 288, 291 (1987) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

42. State v. Lafayette, 148 Vt. 288 (1987). But see State v. Gilman, 155 Vt. 649 (1990) (when defendant has passed the age of 21 and defendant's goal is dismissal of charges rather than transfer to juvenile court, denial of transfer motion is not a collateral final order). An order refusing to seal affidavits and close court proceedings also met the three criteria. In re K.F., 151 Vt. 211, 212 n.1 (1989).

43. State v. Cleary, 150 Vt. 649 (1988) (mem.).

44. In re C.K., 156 Vt. 194, 197 (1991).

45. State v. Barrows, No. 91-456 (Vt. Oct. 1, 1991) (unpublished).

46. In re F.E.F., 156 Vt. 503, 508 (1991).

47. The language of the rule is permissive ("the court may permit an appeal" on motion). See In re J.G., No. 93-119, slip op. 3-7 (Vt. May 21, 1993); In re C.K., 156 Vt. 194, 196 (1991). In State v. Francis, No. 92-506 (Vt. Dec. 3, 1992) (mem.), the supreme court wrote that a juvenile has no absolute right to appeal a transfer decision, while noting that the court would rarely if ever deny review of such a ruling.

48. Pre-Rule 5.1 case law permitted collateral final order appeals by notice of appeal. State v. Cleary, 150 Vt. 649 (1988) (mem.).

49. V.R.A.P. 5.1(a).

50. V.R.A.P. 5.1(a).

51. V.R.A.P. 5.1(c).

52. The rule provides that "an appeal does not divest the trial court of jurisdiction of the remainder of the action." The supreme court has ruled both ways on the effect of an appealed transfer decision. Compare State v. Francis, No. 92-506 (Vt. Dec. 3, 1992) (unpublished) (no automatic stay) with State v. Wood, No. 88-261 (Vt. July 8, 1988) (unpublished) (appeal stays further proceedings). The Reporter's Notes point out that "[i]n criminal matters in which jeopardy may attach prior to resolution of the collateral order appeal, it would appear to be the better practice to grant a stay."

53. V.R.A.P. 5.1(c).

54. See §§ 40.10 et seq.

55. See § 14.04 (double jeopardy).

56. 13 V.S.A. 7403(b).

57. State v. Clarke, 145 Vt. 659 (1984) (mem.).

58. 13 V.S.A. 7403(e); State v. Mason, 147 Vt. 647 (1986) (mem.).

59. State v. Saari, 152 Vt. 510, 513 (1989); State v. Wiseman, No. 85-329 (Vt. Nov. 6, 1985) (unpublished).

60. See § 40.04, supra. 13 V.S.A. 7403(a), which predates the rules, provides that in misdemeanors "questions of law decided against the state . . . shall be allowed and placed upon the record before final judgment. The court may pass the same to the supreme court before final judgment." An argument that prosecution appeals in misdemeanors are governed by the statute and not Rule 5, was raised but not reached in State v. McCann, 149 Vt. 147, 149 n.1 (1987).

61. V.R.A.P. 5(b)(1); 13 V.S.A. 7403(c),(d).

62. State v. Corliss, 145 Vt. 169 (1984).

63. 150 Vt. 600 (1988).

64. State v. Dubois, 150 Vt. 600, 602 (1988).

65. State v. Dubois, 150 Vt. 600, 603 (1988).

66. V.R.A.P. 5(b)(1). But see 13 V.S.A. § 7403(e) (appeal must be taken within seven days).

67. State v. Saari, 152 Vt. 510, 513 (1989).

68. V.R.A.P. 21.

69. State v. Saari, 152 Vt. 510, 513 (1989) (challenge to trial judge's order refusing to impose mandatory minimum sentence in misdemeanor case). See State v. Forte, No. 91-061 (Vt. Feb. 1, 1993); State v. Forte, 154 Vt. 46 (1990) (state can challenge granting of defendant's motion for new trial by petition for extraordinary relief).

70. State v. Forte, 154 Vt. 46, 48, 50 (1990).

71. State v. Forte, 154 Vt. 46, 48, 50 (1990).

72. V.R.Cr.P. 44.2(c).

73. A.O. 4 § 4(c); App. 1.

74. A.O. 4 § 4(c). Trial counsel's assignment continues until the application is ruled on.

75. V.R.A.P. 10(b)(1).

76. A.O. 4 § 4.

76.5. The form is reproduced as App. 28.

77. V.R.A.P. 10(b)(1).

78. V.R.A.P. 10(b)(5).

79. V.R.A.P. 10(b)(3). The appellee may then order them itself if the appellant refuses to do so or request a prehearing conference to resolve the dispute. Id.

80. V.R.A.P. 10(b)(3).

81. V.R.A.P. 3(e).

82. The form is reproduced as App. 29.

83. The clerk lists the hearings on an Appeal Transcript Order Form, App. 28.

84. See § 40.12, supra.

85. V.R.A.P. 10(b)(3).

86. See § 7.20 (bail).

87. See §§ 7.18-7.19 (bail).

88. V.R.A.P. 10(a).

89. V.R.A.P. 11(a).

90. V.R.A.P. 11(b).

91. V.R.A.P. 11(a).

92. V.R.A.P. 11(b).

93. V.R.A.P. 10(e).

94. V.R.A.P. 10(c),(d).

95. See § 6.08, supra (counsel). See generally Bundy v. Wilson, 815 F.2d 125, 130-31 (1st Cir. 1987).

96. The statutory provision for "necessary services and facilities of representation[,]" 13 V.S.A. § 5231(2), includes a transcript at state expense. State v. Kozikowski, 135 Vt. 93, 94 (1977). See also V.R.A.P. 10(b), Reporter's Notes - 1982 Amendment; V.R.A.P.

97. See V.R.A.P. 24(d). The Vermont Supreme Court has held that Rule 24 creates no entitlement to a transcript but merely implements entitlements created elsewhere (by statute or the constitution). Audette v. Koier, 157 Vt. 637 (1991).

98. See Houston v. Town of Ferrisburg, 143 Vt. 648 (1983) (mem.); Wemyss v. Viens, 125 Vt. 81 (1965); Reynolds v. Romano, 96 Vt. 222 (1922). In cases governed by the civil rules, the trial court is empowered to set aside the judgment if the lack of a transcript prevents a party from effectively prosecuting the appeal. V.R.C.P. 59(f).

99. See Gionet v. Town of Goshen, 152 Vt. 451 (1989); In re S.B.L., 150 Vt. 294, 297-98 (1988).

100. V.R.A.P. 12(b).

101. V.R.A.P. 30(a). The time for filing the printed case can be extended up to 30 days by stipulation. V.R.A.P. 26(e).

102. V.R.A.P. 30(a).

103. "The fact that parts of the record are not included in the printed case shall not prevent the parties or the Court from relying on such parts." V.R.A.P. 31(a).

104. State v. Williams, 143 Vt. 396, 405-06 (1983).

105. V.R.A.P. 31(a).

106. V.R.A.P. 26(d),(e).

107. V.R.A.P. 26(b).

108. V.R.A.P. 31(a).

109. V.R.A.P. 26(b),(e).

110. V.R.A.P. 31(a).

111. V.R.A.P. 28(a).

112. V.R.A.P. 28(b).

113. V.R.A.P. 28(h). Leave to file longer briefs will usually be granted, but the request should be made no later than five days before the filing deadline and should "specify the number of additional pages requested. . . ." Id.

114. See generally Dooley, 19 Vt. B.J. 9 (Feb. 1993).

115. The court has also placed new emphasis on the prehearing conference, a device intended to encourage stipulations narrowing issues and fixing deadlines. V.R.A.P. 33. The conference procedures have not proved particularly useful in criminal cases.

116. V.R.A.P. 26(b).

117. V.R.A.P. 2.

118. Appeals in extradition cases are likely candidates for this special treatment.

119. V.R.A.P. 34(a).

120. See V.R.A.P. 34(b) ("The amount of time allowed each side will be determined by the Court"); 33(c) (court may make order allocating the time for oral argument or directing limited argument).

121. V.R.A.P. 34(b); 33(c).

122. V.R.A.P. 33.1(c).

123. A.O. 27.

124. Dooley, 19 Vt. B.J. 9, 11 (Feb. 1993).

125. Dooley, 19 Vt. B.J. 9, 9 (Feb. 1993).

126. V.R.A.P. 33.1(d).

127. V.R.A.P. 28(i).

128. V.R.A.P. 28(i).

129. In fiscal year 1992 the court decided 304 cases by memorandum opinion, 140 of them by three-justice panels. During the same period it wrote only 147 full-dress opinions. Dooley, 19 Vt. B.J. 9, 11 (Feb. 1993).

130. V.R.A.P. 40.

131. V.R.A.P. 40.

132. V.R.A.P. 41(a).

133. V.R.A.P. 41(a),(b).