Don’t Give Up On Appellate Jurisdiction

The appellate courts are zealous about protecting their jurisdiction. When in doubt, it is not unusual for a court to ask for briefing on the issue even where both sides have assumed jurisdiction. And so the Supreme Court does in People v. Segura, case no. S148536 (Aug. 4, 2008), which is interesting for a couple of appellate wrinkles.

First, the background. The issue under review was:

whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify or revoke probation during the probationary period.

An obscure question? Not if you’re not a citizen, your 365 day jail term makes you eligible for deportation, and Homeland Security picks you up for deportation promptly upon your release from jail. When that happens, you ask the court to amend the judgment nunc pro tunc to require a jail term of only 360 days as a condition of probation. That 5-day decrease takes you out of eligibility for deportation.

The trial court decides it lacks jurisdiction to alter the jail term, the court of appeal reverses, and the People successfully seek review.

But before they decide the question, the Supremes ask for clarification – is the trial court’s order appealable? As you’d expect, defendant says yes, the attorney general says no, but with a twist. Though the AG contends the order is not appealable, he urges that the issue is so important that the court should decide it anyway by treating the appeal as a petition for habeas corpus. And the Supremes oblige.

There’s a second obstacle, though. Segura himself had been released from jail and deported already. The point appears moot. Again, though, the court decides not to let that stop its consideration of the issue:

Nonetheless, the question raised is a matter of public interest and is likely to recur in other cases at a time prior to a defendant’s deportation when the opportunity for review may be limited. [Citation.] Moreover, the parties dispute whether the Court of Appeal’s decision is consistent with, or distinguishable from, the decision in [citation]. Accordingly, for the guidance of courts in future cases presenting similar issues, we have exercised our inherent authority to retain the case for argument and the rendering of an opinion.

Lesson: Don’t let questionable jurisdiction stop you from appealing, especially when it comes to an order after a judgment of conviction. And if you can get that far, the Supreme Court seems more likely than a court of appeal to overlook something like mootness. After all, if the issue is important enough for it to review, there’s a decent chance the court wil find it important enough that mootness shouldn’t stand in the way.