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Massachusetts Appellate Procedure Rule 3: Appeal - How Taken

[Disclaimer]

(a) Filing the Notice of Appeal. An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. A party need not claim an appeal from an interlocutory order to preserve his right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rules of Civil Procedure 46 or Massachusetts Rules of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a lower court 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) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by the party or parties taking the appeal, unless the appellant is the minor subject of the action; a notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(d) Service of the Notice of Appeal. The clerk of the lower court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party at his last known address. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or his counsel. The clerk shall note in the docket the names of the persons to whom he mails copies, with the date of mailing.

(e) Change of Counsel on Appeal in Criminal and Certain Non-criminal Cases. If the defendant in a criminal case or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10 was represented by counsel at trial, trial counsel shall continue to represent that party on appeal until the trial court permits him to withdraw his appearance and until an appearance is filed by substitute counsel. If trial counsel wishes to withdraw, he shall, on the day upon which the notice of appeal is filed, file a motion to withdraw. Any motion under this provision shall be marked up by the trial counsel for hearing no later than seven days after filing. If the motion to withdraw is allowed, the judge shall assign the Committee for Public Counsel Services to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

(f) Appointment of Appellate Counsel in Child Welfare Cases. Any party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was represented by counsel at trial, shall continue to be represented by that counsel on appeal until either the trial court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the trial court has denied a motion to appoint counsel for appellate purposes. Trial counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal. At the same time, if trial counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes. Subject to the provisions of Supreme Judicial Court Rule 3:10, ยง 7, trial counsel shall continue to represent the party at all trial court proceedings. If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

Amended May 15, 1979, effective July 1, 1979; May 29, 1986, effective July 1, 1986; amended July 28, 1999, effective September 1, 1999.