Alabama Rules of Appellate Procedure
Rule 3. Appeal as of right – How taken
(a) Filing the notice of appeal.
(1) In civil cases an appeal permitted by law as of right shall be taken to an appellate court by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. The appellant shall cause a sufficient number of additional copies of the notice of appeal to be marked filed with the date of filing noted thereon and certified as a true copy by the clerk of the trial court for service on the persons and parties as provided by (d)(1) of this rule. Appeals by permission from interlocutory orders shall be taken in the manner prescribed by Rule 5.
(2) In criminal cases, an appeal permitted by law as a matter of right to an appellate court shall be taken by filing a written notice of appeal with the clerk of the trial court within the time allowed by Rule 4, or by the defendant’s giving an oral notice of appeal at the time of sentencing, which oral notice shall be noted of record; provided, that a pre-trial appeal by the State shall be taken by filing a written notice of appeal in the manner, and within the time, specified by the rule of criminal procedure providing for such appeals. On the date the notice of appeal is filed, the clerk of the trial court shall serve copies of the notice of appeal on the persons specified by (d)(2) of this rule.
(b) Joint or consolidated appeals. If two or more persons are entitled to appeal from a judgment or order and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate court upon its own motion, or upon motion of a party, or by stipulation of the parties to the several appeals.
(c) Form and content of notice of appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Such designation of judgment or order shall not, however, limit the scope of appellate review.
If the notice of appeal names the wrong appellate court to which the appeal is taken, such designation shall be treated as a clerical mistake and corrected accordingly. The necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate court.
(d) Service of the notice of appeal.
(1) In civil cases, the clerk of the trial court shall, on the date the notice of appeal is filed, serve a true copy of the notice of appeal, or any amendment thereto, as required in (a)(1) above, personally or by mailing a copy thereof to each of the following: the clerk of the appropriate appellate court; the court reporter who reported the evidence; counsel of record for each party, or, if a party is not represented by counsel, to the party at the party’s last known address. Service shall be sufficient notwithstanding the death of the party or the party’s counsel. In civil cases, the copy of the notice of appeal to the clerk of the appellate court will be accompanied by payment of the docket fee as provided in Rule 35(A)(1). In civil cases, the appellant shall serve a copy of the notice of appeal on each adverse party, but the copy need not contain the clerk’s filing notations.
(2) In criminal cases, the clerk of the trial court shall serve the notice of appeal, whether oral or written, upon each of the following: the clerk of the appropriate appellate court; the court reporter who reported the evidence; the defendant; the defendant’s appellate counsel; the district attorney of the circuit in which the trial court is situated; and the Attorney General. The copy of the notice of appeal to the clerk of the appellate court shall be accompanied by the docket fee prescribed in Rule 35A(b) of these rules, if applicable, unless the appellant failed to pay the docket fee at the time the notice of appeal was filed.
(e) Filing the docketing statement. Each notice of appeal to an appellate court, at the time it is filed with the trial court, shall be accompanied by the appropriate “Docketing Statement” (Form 24, 25, or 26). If the notice of appeal is given orally in a criminal case, the docketing statement shall be filed within 7 days (1 week) after the oral notice of appeal is given. However, the appellant’s failure to file the docketing statement with the notice of appeal shall not affect the validity of the notice of appeal. The appellant, or if the appellant is represented by counsel, then the appellant’s attorney, shall complete and sign the docketing statement before it is filed with the court. If the notice of appeal is tendered to the clerk of the trial court without a properly completed docketing statement, the clerk shall accept the notice of appeal and shall inform the person filing it of the requirements of this rule, and the appellant, or, if the appellant is represented by counsel, then the appellant’s attorney, shall promptly file a properly completed docketing statement. The clerk of the trial court, when serving the notice of appeal as specified in this rule, shall attach thereto a copy of the docketing statement, if available. If, on the date the notice of appeal is served, the docketing statement is not available, it shall be served on those persons on whom the notice of appeal was served as soon as it becomes available. For the failure to comply with the requirements of this rule, the appellate court in which the appeal is pending may make such orders as are just, including an order staying the proceedings until the docketing statement is filed or, after proper notice, an order dismissing the appeal; and, in lieu of any orders or, in addition to any orders, the court may treat the failure to comply with the requirements of this rule as contempt of court. (Amended 10-14-76, eff. 1-16-77; Amended 10-2-78, eff. 12-1-78; Amended 2-6-84, eff. 4-1-84; Amended 8-27-91, eff. 10-1-91; Amended 11-17-93, eff. 2-1-94; Amended 11-19-96, eff. 1-1-97; Amended 5-3-00, eff. 9-1-00; Amended 1-8-04, eff. 3-1-04.)
Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional. Rule 4(a) sets forth the relevant time periods for timely filing notice of appeal in civil appeals. Rule 4(b) sets forth the relevant time period for filing timely notice of appeal in criminal appeals.
Failure of an appellant to take any step other than the timely filing of a notice of appeal with the clerk of the trial court does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. Sanctions for such failures are set out in Rules 2 and 48.
Subdivision (c) provides that erroneous designation of the appellate court to which the appeal is taken is treated as merely a clerical mistake and may be corrected accordingly. Further, any steps necessary to effectuate the change in appellate courts shall be taken. This is in accordance with the existing Alabama practice under Code of Ala., § 12-1-4.
The intent of this rule is to provide a uniform and simplified method of taking an appeal, and it is contemplated that a single notice will be filed. The requirement of a citation on appeal required by Code 1940, Title 7, § 801, is eliminated and the holdings in cases such as Mid-State Homes v. Roberts, 288 Ala. 86, 257 So.2d 333, are superseded.
The form and content of a typical notice of appeal are set out in the Appendix of Forms to these rules in Forms 1 and 11, and Rule 50 specifically provides that the forms contained in the Appendix of Forms are sufficient.
In accordance with the existing practice under Code 1940, Title 7, § 804, even parties not joining in the appeal are given a copy of the notice of appeal. In criminal cases, the appellant and his counsel shall also he sent a copy of the notice so that they will know it has been received by the clerk and sent to the other parties.
Although notice of appeal is the only jurisdictional act to commence the appellate process, provision is made in Rules 7, 8 and 12 for supersedeas and cost bonds and docket fee, and a party shall be subject to sanctions for failure to comply, ultimately including dismissal of the appeal.
In civil appeals, filing and serving notice of appeal are governed by subdivisions (a) and (d). The interplay of(a) and (d) requires the appellant to file the notice of appeal with the clerk of the trial court. Also, the appellant is required to have the clerk mark a sufficient number of copies of the notice of appeal with the date of filing and certified as a true copy so that a copy can be sent to the clerk of the appellate court, the court reporter who reported the evidence, and counsel for each opposing party, or, each opposing party if not represented by counsel. Marking the copies with the filing date is because the date of filing the notice of appeal triggers the time schedule in the appellate process. The clerk is required to serve each of these copies of the notice of appeal. This requirement is not a jurisdictional act; however, it is subject to Rule 2 sanctions.
Likewise, in criminal appeals, filing and serving notice of appeal is governed by subdivisions (a) and (d). The interplay of (a) and (d) requires the appellant to either give oral notice of appeal at time of sentencing or written notice within the time allowed by Rule 4(b). This alternative of giving either oral or written notice continues practice under Code 1940, Title 15, § 368. Then, the clerk has the responsibility for serving the notice of appeal, whether the notice of appeal is given orally in open court or in writing, on various parties named in (d)(2). See Form 12 for service by the trial court clerk of the notice of appeal. The attorney general is added to this list due to the peculiar problem in criminal appeals wherein the appellate brief is handled by his office. Also, (d) requires that both the defendant and his attorney receive a copy of the notice of appeal.
It is contemplated that in cases which have not been consolidated at the trial level (when presumably the case would proceed as a single case thereafter), parties jointly interested in an appeal may file a joint notice of appeal or may consolidate their appeals after filing separate notices. They will then proceed as a single appellant as far as briefs, appendices, oral arguments, etc., are concerned.
The words “or review by certiorari in a workmen’s compensation case” have been added in the first sentence of subsection (a)(1) of Rule 3 and this subsection has been rewritten. The applicability of these rules to workmen’s compensation cases, as to the time for taking the appeal and the procedure to be followed in perfecting the appeal, is not to be construed as changing or in any way superseding § 25-5-81 of the Code of Alabama providing for review by certiorari. However, all matters of procedure, including the giving of notice of appeal, the time within which such notice is to be given, the filing of an appeal or supersedeas bond, the preparation of the record on appeal, and the raising of the questions presented for review applicable to workmen’s compensation cases, are governed by the Alabama Rules of Appellate Procedure; but the scope of appellate review shall remain as in cases on review by certiorari. See Alabama Digest, Workmen’s Compensation, Key Nos. 1910, 1911, 1912, and 1935. Nor does this rule change the requirement that the trial court file a statement of the law and facts as mandated by § 25-5-88 of the Code of Alabama. See Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 So. 2d 242.
Court Comment to Amendment to (a)(2) Effective April 1, 1984.
Section (a)(2) was amended effective April 1, 1984, to incorporate references to pretrial appeals by the state in criminal cases. Temporary Rule 17, A.R.Crim.P., allowing certain pretrial appeals by the state in criminal cases, became effective that date, and that rule, in providing for a notice of appeal in such cases, provided a procedure very different from that set out in this Rule 3(a)(2). At the same time, this Rule 3(a)(2) was clarified to speak of the defendant’s “giving,” rather than “filing,” an oral notice of appeal.
Court Comment to Amendments Effective October 1, 1991.
The amendments to Rule 3(a)(2) and 3(d)(1) direct the clerk of the trial court to serve copies of the notice of appeal on the appropriate parties on the date of its filing. The adoption of Rule 3(e) introduces the docketing statement, which provides more detailed information to the appellate court concerning the appeal.
Committee Comments to Amendment to Rule 3(d)(1) Effective February 1, 1994.
This amendment added the last sentence to paragraph (d)(1) (reading “In civil cases, the appellant shall serve …”). Every other paper in a civil case is served on other parties, so this rule will not be a burden. The primary purpose of the notice provision is to prevent the 14-day cross-appeal period from running before other parties learn of the filing of a notice of appeal.
Court Comment to Amendment to Rule 3(d)(1) Effective January 1, 1997.
The amendment to Rule 3(d)(1) removes gender specific pronouns.
Committee Comment to Amendment to Rule 3(a)(1) Effective September 1, 2000
This amendment deletes the reference to certiorari review of workers’ compensation cases by the Court of Civil Appeals. Pursuant to Act No. 92-537, § 26, Ala. Acts 1992 (codified at § 25-5-81(e), Ala. Code 1975), review of workers’ compensation cases is by appeal.
Notes from the reporter of decisions: The order amending Rule 3(a)(1), effective September 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
The order amending Rule 3(d)(2), effective March 1, 2004, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.