Appeals Process FAQ – California Penal Code 1237

Appeals FAQ

 

Will I remain in custody during my appeal?

If you are convicted of a misdemeanor and you file a notice of appeal, you are entitled to remain free from custody after posting reasonable bail. For more details, see Penal Code Sectioni 1272

The appeals process is lengthy, so this allows you to return to work, school and family in hopes that your conviction is reversed.

However, if convicted of a felony, it is up to the discretion of a trial court judge to determine whether or not you remain out of custody during the appeals process. If the judge believes that you are not a flight risk, meaning that you will not try to avoid prosecution by fleeing from the jurisdiction, and that you have a good chance of prevailing in your appeal then the judge may allow you to post reasonable bail to remain out of custody while your appeal is pending. For more details, see California Penal Code Section 1272.1.

It is very unusual though for a judge to allow someone convicted of a felony to post bail during the appeals process.

What options do I have if the reviewing appellate court affirms my conviction?

If the court of appeals affirms your conviction, this means that they do not believe that you should be entitled to a new trial. In this event, your criminal appeals attorney may petition for a rehearing with 15 days of the court’s decision.

If your appeal to the Court of Appeal fails, you can file a petition for review in the California Supreme Court within 10 days after the decision of the Court of Appeal becomes final. If the California Supreme Court turns down your request you may still be able to pursue additional appellate remedies in the federal courts.

Is an appeal the same as getting a second trial?

No. It is very different. In an appeal, there is no jury, no witnesses, and no live testimony. The appellate courts look at when reviewing your case is the record that was produced at trial. The appeals process is based solely on written briefs and oral arguments that contend that the trial court had made a mistake on a particular matter that resulted in a wrongful conviction.

What happens in most cases if the court of appeals reverses the accused’s conviction?

When a higher court decides to reverse the trial court, the case typically becomes “remanded.” This means the case is sent back to the Superior Court for further proceedings. In most cases, this means two things. Either the defendant will receive a new trial, or the prosecution can decide to dismiss the charges if the witnesses can no longer be found. Typically what occurs is that the prosecutor may make a “plea bargain” that is much more favorable to the accused than the sentence that had been previously imposed by the court in order to avoid a new trial.