An appeal is considered to be frivolous if it lacks merit. An appeal lacks merit if a trial court committed no error in a defendant's case. Attorneys generally have a duty not to file frivolous appeals. However, even though an attorney may deem that a defendant's appeal is frivolous, he or she may be required to file an appellate brief. Such a brief is called an "Anders" brief.

Attorneys that have been retained by a defendant to prosecute an appeal on behalf of the defendant are not entitled to withdraw from the defendant's case without the permission of an appellate court. The reason for this is that a retained attorney must support the defendant's appeal to the best of his or her ability. However, the retained attorney may recommend that the appeal be withdrawn. If the defendant refuses to withdraw his or her appeal, the retained attorney may file a motion to withdraw. The motion must be furnished to the defendant and must provide the appellate court with the last known address and phone number of the defendant.

If an attorney has been appointed for an indigent defendant, the attorney cannot recommend that the defendant's appeal be withdrawn. The appointed attorney also cannot withdraw from the appeal because the indigent defendant is entitled to be represented in his or her appeal.

Even though an appointed attorney cannot withdraw from an indigent defendant's appeal, the attorney is not required to present invalid arguments to an appellate court. In this situation, the appointed attorney is required to file an "Anders" brief or a frivolous appeal brief. The "Anders" brief ensures that the appointed attorney has reviewed a trial court's record and has thoroughly researched the law before determining that the defendant's appeal is frivolous. The "Anders" brief is filed only if the attorney finds no legal arguments that could support the appeal.

An "Anders" brief should set forth any possible points of error that could support a reversal of an indigent defendant's conviction. The brief should refer to a trial court's record and the legal precedents and authorities that support the possible points of error. If an appointed attorney determines that there are no valid points of error, the brief must explain why there are no valid points of error.

When an appointed attorney determines that an indigent defendant's appeal lacks merit, the attorney should inform an appellate court of his or her determination, should request permission from the appellate court to withdraw from the defendant's appeal, and should provide the defendant with a copy of the "Anders" brief. The defendant is usually given a certain number of days within which to file a brief on his or her own behalf.

An appellate court will make the final determination as to whether an appeal is frivolous. If the appellate court determines that the appeal is frivolous, an appointed attorney will be permitted to withdraw. If the appellate court determines that the appeal is not frivolous, a new attorney will be appointed for the defendant.


Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.