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Criminal Law & Procedure: Appeals:Records on Appeal

Criminal Law & Procedure: Appeals: Reviewability: Preservation for Review

A bill of exception is an objection to a ruling or an action on the part of a trial court. The bill of exception shows the trial court's ruling or action that is not set forth in the trial court's record. The bill of exception is used to explain the circumstances and the evidence regarding the objection.

Because an appellant has the burden of providing a record for an appellate court, a bill of exception may be used to provide such a record. It may be used to show a trial court's ruling, action, or failure to act, such as a failure to read a defendant's indictment or information.

A bill of exception may not be used to make an assertion regarding matters that were not presented to a trial court or which did not occur during the course of a trial. If an alleged error depends upon the trial court's nonverbal actions, the bill of exception must describe the trial court's nonverbal action.

A bill of exception must be filed within a certain number of days after a defendant's sentence has been pronounced or after the defendant's sentence has been suspended. If the defendant has filed a motion for a new trial, the time period for filing the bill of exception is usually extended. The time for filing the bill of exception may also be extended upon the filing of a motion for an extension of time.

After a defendant files a bill of exception, the defendant must present the bill to the trial judge. The trial judge will submit the bill to the prosecuting attorney. If the prosecuting attorney agrees with the bill, the judge signs the bill and files it with the clerk of the court. If the prosecuting attorney does not agree with the bill, the trial judge may make suggestions regarding the bill in order for the bill to accurately reflect the trial court's proceedings. If the defendant agrees with the suggestions, the trial judge will sign the bill and will file it with the clerk. If the defendant does not agree with the suggestions, the trial judge must return the bill. The trial judge then prepares, signs, and files a bill of exceptions that presents his or her view of his or her ruling.

If a trial judge prepares, signs, and files a bill of exceptions, a defendant may file a bystander's bill. The bystander's bill must contain affidavits from persons who observed the trial judge's ruling. The bystander cannot be connected with the defendant's case. On appeal, an appellate court will review the bystander's bill or the bill of exceptions as part of the record.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.

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