If an appeal is still showing active after being dismissed, will the trial court still decide on a motion sent in after?
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If an appeal is still showing active after being dismissed, will the trial court still decide on a motion sent in after?
An appeal was dismissed on Aug.13 but it is still showing active with the court appointed attorney that did nothing to help, and we are wanting her gone. A Motion to place defendent on Community Supervision was sent in by defendent and filed by district clerk on the 22nd, however is showing up on First Court of Appeals and with the trial court. We needed it to go to the trial court to be ruled on, but they said the appeals court will rule on it. How do we get the motion out of the appeals court so only the trial court will have it?
Asked on October 7, 2016 under Criminal Law, Texas
Answers:
B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
You need to hire an attoney to assist you with appellate issues. Without seeing the actual documents, it will be difficult to discern why the case is still open... however, all of the courts of appeals will keep a case open for a couple of months after they render their decision. They do so to insure that no additional motions will be filed, (like a motion for reconsideration). Once a time period has lapsed, they will issue a 'mandate', and then the case will officially return to the trial court. If you already have a 'mandate' (not just a dismissal), then the case hasn't quite concluded with the appellate court. The district court will not usually proceed until they have the final mandate. The mandate is basically the piece of paper that says 'we are done.'
Even without the case being returned to the trial court, a new attorney can step in and take over both components of the case. They simply need to file a notice of appearance as lead counsel with the appellate court and the district clerk.
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