Criminal Articles from www.NJLaws website: Amended Form – Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief and Colloquy Date: August 25, 2014

Amended Form – Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief and Colloquy

Date: August 25, 2014

Directive #20-06 (November 15, 2006) promulgated the Appeals Rights Form for use in criminal cases and the standard Appeals Rights colloquy to be used by the judge during sentencing to ensure that a "defendant understands his or her appeal rights and has executed the appeal rights form knowingly and intelligently." State v. Molina, 187 N.J.531, 544 (2006). Directive #03-10 (March 9, 2010) promulgated revisions to the form and colloquy to address notice for the filing of post-conviction relief applications.

In its 2011-2013 report, the Criminal Practice Committee recommended revising the section of the form signed by a private attorney, which describes the procedure to be followed when a defendant decides to appeal and cannot afford to continue to retain private counsel. Those revisions to the form, as approved by the Supreme Court, and revisions to the colloquy, as endorsed by the Conference of Criminal Presiding Judges and the Conference of Criminal Division Managers, follow.

The Appeal Rights Form is being revised to conform with the current practice in R. 2:7-2(a) when a defendant is represented by private counsel at trial, but wishes to seek representation by the Office of the Public Defender for purposes of appeal. The form had required that private counsel refer the matter to the Office of the Public Defender to file the appeal, a practice that caused delays in the receipt and processing of 5A indigency applications, as well as the final indigency determination and referral of the matter to the Office of the Public Defender for representation.

The form as revised now provides that if the defendant no longer wishes to retain private counsel for purposes of appeal, private counsel will direct the defendant to contact the Criminal Division Manager's Office in the county of venue as soon as possible so that the defendant can complete an indigency application to ensure the appointment of the Office of the Public Defender within 45 days of the sentencing date. Additionally, the form is being revised to include the contact address for the criminal case management office for the county where the conviction occurred. The proposed revisions will help ensure that if the defendant seeks representation by the Office of the Public Defender for the appeal, the indigency determination is made by the criminal case management office before the matter is referred to the Public Defender's Office. In that way, the Public Defender's Office, as opposed to the private attorney, will be able to file the notice of appeal on behalf of indigent individuals who have been deemed eligible for its services.

The colloquy used by judges during sentencing also has been revised to advise defendants that if private counsel does not continue representation on appeal, the defendant should contact the Criminal Division Manager's office to apply for a Public Defender.

Please share this information in your respective vicinages to ensure that members of the bar who practice in this area are informed of this change in procedure.

Attached for use in criminal cases are: (1) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief, English-language version; (2) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief, Spanish-language version; (3) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief Colloquy, English-language version; and (4) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief Colloquy, Spanish-language version. Any questions or comments regarding the form may be directed to Assistant Director Joseph Barraco at 609-292-4638.

G.A.G.

Attachments:

(1) Notice of Appeal Rights and Time to File a Petition for Post-Conviction, Relief, English-language version

(2) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief, Spanish-language version

(3) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief, Colloquy, English-language version

(4) Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief, Colloquy, Spanish-language version

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - COUNTY INDICTMENT NO.
NOTICE OF APPEAL RIGHTS AND TIME TO FILE A PETITION FOR POST-CONVICTION RELIEF

STATE OF NEW JERSEY - v. -
Defendant
I, , hereby certify as follows:
1. I am the defendant in the above referenced case.

I am being represented in this sentencing by and he/she has reviewed this Form with me.
Appeal Rights. I understand that:
1. (a) An appeal means having my case reviewed by a higher court,
2. (b) I have a right to appeal my conviction(s) and sentence(s),
3. (c) I have the right to be represented by counsel for that appeal,
4. (d) If I am unable to hire private counsel for my appeal, the Office of the Public Defender will
  represent me or arrange for my representation, and
5. (e) If I fail to file a notice of appeal with the Appellate Division within 45 days of today’s date, and
  unless I obtain a thirty-day extension of time on a showing of good cause and absence of prejudice, I will lose my right to appeal.
Time Limits To File a Petition for Post-Conviction Relief. I understand that I have 5 years from today’s date to file a petition for post-conviction relief, unless an exception to this general rule applies, as set forth in R. 3:22-12.
I am appearing before Judge , for sentencing today.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.
DATED:
Defendant
I have reviewed this Form with defendant and I am satisfied that he/she has been fully advised of the rights it describes.
DATED:
Counsel for Defendant
(To Be Filled Out By Private Counsel Only)
If defendant decides to appeal and cannot afford to retain private counsel, I will direct him/her to contact the Criminal Division Manager’s Office in the county of venue and complete an indigency application for appointment of the Office of the Public Defender within 45 days of today’s date.
DATED:
Counsel for Defendant
For information on appellate representation by the Office of the Public Defender, please write to the Superior Court Criminal Case Management Office in the county where the conviction occurred:
(Complete in duplicate: one fully executed copy to be delivered to the court for the court jacket and one to be given to the defendant.)