Municipal
Court Appeals
Municipal
Court criminal convictions and Motor vehicle convictions can cost you.
You may have to pay fines in court or
receive points on your drivers license. An accumulation of too many points, or
certain moving violations may require you to pay expensive surcharges to the
N.J. Division of Motor Vehicles or have your license suspended. It is usually
best to hire an experienced attorney to represent you for motor vehicle
violations. The trial in a Municipal Court is held in front of a Municipal
Court Judge, and no jury trial is permitted. The Judge is ordinarily selected
by the Town Mayor and Council. The appointment sometimes is based upon input
from the Police Chief, PBA and local political organization.
If after your trial you are unhappy
with the decision and the suspension is excessive, you should hire an
experienced attorney for the appeal. There is only twenty days for your
attorney to properly prepare the papers and appeal. On appeal, the Judge only
reads a transcript and looks at exhibits. There is no new testimony and the
appeal judge is bound by the fact finding below, according to State v Lutz 309
N.J. Super. 317 (App. Div. 1998). The following are some of the Court Rules you
and your attorney must comply with.
Why Appeal? Consequences of a Criminal conviction
1 You will have a criminal
record
2 You may go to Jail or Prison.
3. You will have to pay Fines
and Court Costs.
4. You could be put on
Probation for up to five years.
5. You must wait 3-5 years to expunge a first offense. 2C:52-3
6. In Drug Cases, a mandatory
DEDR penalty of $500-$1,000, and lose your driver's license for 6 months -
2years.
7 When you are on Probation or
Parole, you will have to submit to random drug and urine testing. If you
violate Probation, you often go to jail.
8. You may be required to do
Community Service.
9 You lose the presumption
against incarceration in future cases. 2C:44-10 You must pay restitution if the
court finds there is a victim who has suffered a loss and if the court finds
that you are able or will be able in the future to pay restitution.
10. Future employers may not
hire you because you have a criminal record. If you are a public office holder
or employee, you can be required to forfeit your office or job by virtue of
your plea of guilty and may be barred from any future city, state, federal or
school employment
11. If you are not a United
States citizen or national, you may be removed/deported by virtue of your plea
of guilty or prevented from citizenship.
The defense of a person charged with a
criminal offense is not impossible. There are a number of viable defenses and
arguments which can be pursued to achieve a successful result. Advocacy,
commitment, and persistence are essential to defending a client accused of a criminal
offense.
Appeals from
judgments of conviction in the municipal court shall be taken in accordance
with Rule 3:23 and 3:24, The defendant's appeal attorney must file a notice of
appeal with the municipal court within 20 days after the entry of judgment.
Within 5 days after the filing of the notice of appeal, one copy shall be
served upon the prosecuting attorney,
and one copy thereof shall be filed with the Deputy Clerk of the Superior
Court-Criminal Division together with the filing fee and an affidavit of timely
filing of said notice with the clerk of court and service upon the prosecuting
attorney. Under the Court Rules, on
failure to comply with each of these requirements, the appeal shall be
dismissed by the Superior Court, Law Division without further notice or
hearing.
The
proceedings before the court are tape-recorded. An outside company is
contracted with the court to type up the audiotape. That is called a transcript
of proceedings. You must pay the transcript company by preparing a check
payable to the transcript company with a deposit of $300.00. To expedite
proceedings, we recommend you call the Municipal Court to determine the name
and address of the transcript company. Appeal;
How Taken; Time Court Rule 3:23-2.
Under the rule of professional conduct, we will not prepare any paper or
draft an appeal until paid in full.
The
following are the detailed court rules the attorney must follow:
Appeal;
How Taken; Time Rule 3:23-2
Appeals
from judgments of conviction in the municipal court shall be taken in
accordance with R. 3:23 and 3:24, The defendants attorney must file a notice of
appeal with the municipal court within 20 days after the entry of judgment.
Within 5 days after the filing of the notice of appeal, one copy thereof shall
be served upon the prosecuting attorney, , and one copy thereof shall be filed
with the county clerk together with the filing fee and an affidavit of timely
filing of said notice with the clerk of court and service upon the prosecuting
attorney. On failure to comply with each of the foregoing requirements, the
appeal shall be dismissed by the Superior Court, Law Division without further
notice or hearing.
Notice
of Appeal; Contents 3:23-3.
The
notice of appeal shall set forth 1. the title of the action; 2. the name and
the address of the appellant and appellants attorney, 3. a general statement of
the nature of the offense; 4. the date of the judgment; 5. the sentence
imposed; 6. whether the defendant is in custody; 7. if a fine was imposed; 8
whether the fine was paid or suspended; and 9 the name of the court from which
the appeal is taken.
There
shall be included in the Notice of Appeal a statement as to whether or not a
stenographic record or sound recording was made pursuant to R. 7:8-8 in the
court from which the appeal is taken. Where a verbatim record of the proceeding
was taken, the Notice of Appeal shall also contain the attorneys certification
of compliance with R. 2:5-3(a) (request for transcript) and R. 2:5-3(d)
(deposit for transcript) or certification of the filing and service of a motion
for abbreviation of transcript pursuant to R. 2:5-3(c).
Duties
of Clerk of the Trial Court and Superior Court, Law Division 3:23-4.
(a)
Preparation of Transcript. Upon the filing of the notice of appeal, the clerk
of the court below shall forthwith deliver to the county clerk the complaint,
the judgment of conviction, the exhibits retained by the clerk, and a
transcript of the entire docket in the action, and the county clerk shall
deliver copies thereof to the prosecuting attorney on request.
(b)
Docketing; Hearing Date. Upon the filing of a copy of the notice of appeal, the
affidavit and the payment of the filing fees, as provided by R. 3:23-2, the
county clerk shall docket the appeal and shall thereafter fix a date for the
hearing of the appeal and mail written notice thereof to the prosecuting
attorney and the appellant, or, if the appellant is represented, the appellants
attorney.
Stay
of Penalties Rule 7:13-2.
A
sentence to pay a fine, a fine and costs, a forfeiture, an order for probation,
or a revocation of the license to operate a motor vehicle may be stayed by the
court in which the conviction was had or to which the appeal is taken on such
terms as the court deems appropriate.
Relief
Pending Appeal Rule 3:23-5.
(a)
Relief From Custodial Sentence. If a custodial sentence (jail) has been
imposed, and an appeal from the judgment of conviction has been taken, the
defendant shall be admitted to bail by a judge of the Superior Court in
accordance with the standards set forth in R. 3:26-1a.
(b)
Relief From Fine. A sentence to pay a fine, a fine and costs, or a forfeiture
may be stayed by the court in which the conviction was had or to which the
appeal is taken upon such terms as the court deems appropriate.
(c)
Relief From Order for Probation. An order for probation may be stayed if an
appeal is taken.
Hearing
on Appeal Rule 3:23-8.
(a)
Plenary Hearing; Hearing on Record; Correction or Supplementation of Record; If
a verbatim record or sound recording was made pursuant to R. 7:8-8 in the court
from which the appeal is taken, the original transcript thereof duly certified
as correct shall be filed by the clerk of the court below with the county
clerk, and a certified copy served on the prosecuting attorney by the clerk of
the court below within 20 days after the filing of the notice of appeal or
within such extension of time as the court permits. In such cases the trial of
the appeal shall be heard de novo on the record unless it shall appear that the
rights of either party may be prejudiced by a substantially unintelligible
record or that the rights of defendant were prejudiced below in which event the
court to which the appeal has been taken may either reverse and remand for a
new trial or conduct a plenary trial de novo without a jury. The court shall
provide the municipal court with reasons for the remand. The court may also
supplement the record and admit additional testimony whenever : 1) the
municipal court erred in excluding evidence offered by the defendant, (2) the
state offers rebuttal evidence to discredit supplementary evidence admitted
hereunder, or (3) the record being reviewed is partially unintelligible or
defective.
Rule
3:23-8 (b) Briefs. Briefs shall be required only if questions of law are
involved on the appeal or if ordered by the court and shall be filed and served
prior to the date fixed for hearing or such other date as the court fixes. (It
is better for the defense to prepare a brief with applicable cases and statutes
to assist the Judge who handles the de novo appeal)
(c)
Waiver; Exception. The appeal shall operate as a waiver of all defects in the
record including any defect in, or the absence of, any process or charge laid
in the complaint, and as a consent that the court may, during or before the
hearing of the appeal, amend the complaint by making the charge more specific,
definite or certain, or in any other manner, including the substitution of any
charge growing out of the act or acts complained of or the surrounding
circumstances of which the court from whose judgment or sentence the appeal is
taken had jurisdiction, except that if the appeal is from a conviction for an
indictable offense, the appeal shall not operate as a consent that the
complaint may be amended so as to charge such an offense or a new or different
indictable offense, unless the defendant agrees to such amendment.
(d)
Defenses Which Must Be Raised Before Trial. The defenses of double jeopardy,
lack of jurisdiction in the court, failure of the complaint to charge an offense,
the unconstitutionality of the statute, regulation promulgated pursuant to
statute or ordinance under which the complaint is made and all other defenses
and objections based on defects in the institution of the prosecution or in the
complaint must be raised by motion and determined in accordance with R. 3:10.
(e)
Disposition by Superior Court, Law Division. If the defendant is convicted, the
court shall impose sentence as provided by law. If the defendant is acquitted,
the court shall order the defendant discharged, the conviction in the court
below set aside, and the return of all fines and costs paid by the defendant.
An appropriate judgment shall be entered and a copy thereof transmitted to the
court below.
Conclusion
If someone is going to appeal a conviction
by the Municipal Court Judge, they need to immediately file all the necessary
appeal papers, Certifications and briefs. Occasionally, the County Prosecutors
office may even negotiate a plea bargain to a lesser offense with your attorney
if permitted under the law. When your drivers license is in jeopardy or you are
facing thousands of dollars in fines, DMV surcharges and car insurance
increases, you need excellent legal representation. The least expensive
attorney is not always the answer. Please call us if you need experienced legal
representation in a traffic/municipal court matter.
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