Most defendants have a right to appeal their sentences to a higher court (exceptions are explained below), but in most cases, those courts will not disturb the decision of the sentencing (trial) judge. Criminal statutes typically provide a range of punishments for each criminal conviction, including the amount of incarceration, fines, and probation. As long as a judge sticks within the provided range, an appeals court will not overturn a sentence unless the judge made one of the errors discussed below.
What Does It Mean to Appeal a Criminal Sentence?
If you've been convicted at trial, you have the right to appeal both your conviction and sentence at the same time. Appealing a conviction challenges the guilty finding, while appealing a sentence questions the punishment the judge imposed for the crime. Defendants who appeal their sentences argue to a higher court (usually called a court of appeal, appellate court, or appeals court) that the sentencing judge made a mistake that needs to be corrected.
Can You Appeal If You Pled Guilty or No Contest?
If you pled guilty (or no contest) under a plea bargain, you might have agreed to waive (give up) your right to appeal your sentence as long as the judge stayed within the bargain’s agreed-upon sentencing range. (The judge should have advised you of your inability to appeal when you entered your plea.) If the judge does not stick to the terms of the bargain, however, the appellate court will normally allow you to pursue your appeal.
Defendants in plea bargain cases also can usually appeal any legal errors in sentencing that were not part of the plea deal (such as miscalculating credits for time served).
How Long Do You Have to Appeal a Sentence?
To start an appeal, a defendant must file a “notice of appeal” in the trial court within a certain number of days after the judge hands down the sentence. Each jurisdiction has its own window for filing. Time periods vary significantly among the federal system and the states—for example, in a federal case, the defendant has only 14 days to file a notice of appeal, whereas in California state cases, the defendant has 30 days to file in a misdemeanor case, and 60 days to file in a felony case. Usually, trial attorneys will file the notice as part of their representation (but this doesn’t mean that they’ll represent the defendants on appeal). Failing to file a notice of appeal on time usually means that you can’t appeal, so it’s important to meet the deadline.
What Is the Basis for Appealing a Criminal Sentence?
The basis (legal reasoning) for appealing a criminal sentence will depend on the specifics of your case. Some challenges have a better chance of succeeding than others.
Legal Errors
Sentencing appeals with the best chance of success involve cases where the judge has made a mistake in applying the law. If a judge has considered the wrong sentencing factors, applied the wrong penalty provisions, or ignored favorable (mitigating) factors that the law requires the judge to consider, an appeals court might reverse the sentence.
For example, if the law requires a judge to examine how a sentence might affect a defendant with a serious medical condition, but the judge denies having any duty to consider that factor, an appeal of the sentence has a good chance of success.
In successful appeals involving legal errors, the higher court will vacate or set aside the sentence, and order the trial judge to resentence the defendant under the applicable law.
Factual Errors
When sentencing defendants, judges often make “findings of fact” to support their sentencing choices. This involves stating out loud the evidence they relied on to impose the sentence. If a trial court makes findings of fact that are wrong (for example, that the traffic light was red when witnesses at trial said it was yellow), this could be grounds for an appeal.
But an appellate court might not require resentencing if it believes the factual errors weren’t important to the judge’s choice of sentence. For example, imagine a drunk driving case where the sentencing judge chose a higher sentence on the grounds the defendant ran a red light, drove onto a crowded sidewalk, and had prior DUI convictions. If the light was actually yellow and not red, this fact probably wouldn’t have made a difference given the other facts the judge relied on. So, an appeal based on the mistake about the red light wouldn’t likely succeed.
Harsh Sentences
Appeals based on the severity of a sentence rarely succeed. But if you can demonstrate that the sentence is a very significant departure from the normal sentence in similar circumstances, you might be able to persuade an appeals court to send the case back to the judge for resentencing. These types of appeals are much more likely to succeed if you can show that the judge had some prejudice or bias that resulted in an unusually harsh penalty. If you succeed, the appeals court would likely send the case to a different judge for resentencing.