Bail Pending Sentencing or Appeal

When you face a conviction, you will await a sentencing hearing. If the judge overseeing the case allows, you may be able to get a release on bail during the interim. The judge will set the bail based on certain circumstances pertaining to the case, or he may not choose to do so at all. While bail is common for those awaiting a sentencing hearing, you may also notice bail available while awaiting the results of your appeal.

Bail Pending Sentence

While awaiting your sentence hearing, the judge may set bail based on a number of conditions pertaining to the crime. Bail is not a given right, it is a privilege, and it is up the courts to determine whether it will be granted. Violent crimes will likely not prompt a bail release. Some circumstances that affect your chances, and the amount of your bail are:

  • The severity of the crime
  • Prior criminal history
  • Prior failure to appear in court
  • Connection to the community
  • “Flight risk,” or likelihood you will attempt to escape sentencing
  • Likelihood that you will commit another crime on bail

Bail set post-conviction may also come with a few specific restrictions. For many, however, the restrictions are a better alternative to awaiting your sentencing hearing in a jail cell. The amount of bail the judge will set is based on the severity of your crimes and your likelihood to flee. Factors such as family obligations and ties to the community will be examined to determine whether or not a person is deemed a flight risk.

Bail Pending Appeal

If your case makes it to the appellate level, you may be given an opportunity for bail while awaiting your appeal. However, there are a number of things to keep in mind about bail while awaiting appellate court results. The judge will want to make sure you do not interfere with evidence or witnesses that may be necessary for a new trial. Similarly, the same factors that would have applied with a bail pending at sentencing apply here as well. If you were convicted of a violent or a severe crime, bail pending appeal will be much more difficult to obtain. It will be up to the judge to determine if your release will cause harm to the community. On top of this, if the appeal itself is frivolous, has no legal merit, or is simply a delay tactic, not only will you not get bail to await the appeal, the court will likely not bother to hear out the case. Also, much like bail awaiting sentencing, you will likely have some restrictions on what you can and cannot do while out on bail. Likewise, the amount of the bail will depend on the crime in question, and how likely it is you will flee.

The key to having a successful appeal is get in touch with a good criminal defense appeals attorney. A skilled attorney will know the appellate process and can argue for your bail release, as well defend your appeal in court.

Direct Appeal

If you have been convicted of a crime and the trial court reached a result that you and your attorney found to be unsatisfactory, the next step is to file an appeal. Often, cases are resolved with a written brief of the case being read by an appellate judge, though some cases actually do make it to a hearing if the judge deems it necessary. If there was indeed an error, the judge will take the appropriate actions to correct said error. This will happen only if an error in the law was present, in which case this means you win the appeal. So what happens if you lose the appeal? Well, typically the case stops there and you must serve your sentence. However, there is one measure you can take to try once more to push the appeal through.

Direct Appeal

This measure is what is known as a “direct appeal.” A direct appeal is a petition to try a case at a higher level than the appeals court that initially heard the case. However, if the appeal is heard, it is likely to go through a full hearing. If you win the appeal at this stage, since now a higher court has ruled, the prior appeals will be invalid and the Supreme Court’s decision will be controlling. Furthermore, your case will likely become law or guideline for future appellate reviews in the State of California. Bear in mind, a direct appeal is very rarely accepted and brought forward to the Supreme Court judges for review. The grounds upon which you are appealing will be an important factor in whether or not your case could go to the California Supreme Court. Typically, the higher level courts will deal with issues of legality, constitutionality, and interpretation of laws.

How to File a Direct Appeal

You county court will likely have the forms necessary for filing direct appeal, however, it is much simpler to have your attorney do this for you. Your attorney will know how to prepare an appellate case, and present it in a way that will raise valid issues of law with the judges. Talk to your lawyer about moving forward with an appeal, and he or she will advise you on your chances and your best course of action.

Writ of Habeas Corpus

If you are convicted of a crime, one of the options available to you is an appeal. An appeal is a call to a higher court to review the case for any sort of legal error. Appeals are typically a petition to a higher court through your attorney in the form of a case brief. Normally, just the brief of the case will suffice as enough for the judge to make a decision. However, at times, the judge will want to call in both prosecution and defense for an appellate hearing on the matter to better make judgement on the case. Under most circumstances, the case is over once a judge makes a ruling on the appeal.

Writ of Habeas Corpus

If you are imprisoned in a manner you think could be unlawful (even if you have been sentenced to imprisonment by a trial court), there is an option available to protest your confinement. This is known as a “writ of habeas corpus.” The writ petitions the court for a release on the grounds that your imprisonment or incarceration is on improper terms or does not stand on legality. Typically, a writ will discuss the same issues that you have raised in your appeal, however, it cannot be exactly the same as your appeal. For instance, if you lose your appeal, your writ will not be accepted if it simply directly raises the same questions as the questions brought forth in your appeal. However, the California Legislature does offer some instances in which a writ of habeas corpus can and should be used.

When to use Habeas Corpus

While it is generally difficult to get a writ of habeas corpus heard by a court, there are some circumstances that may necessitate a writ, even after the appellate court has denied your appeal. Some examples include:

  • Unconstitutionality: If the law or statute you were convicted on was determined unconstitutional, your writ may stand in court. Unconstitutional laws are usually up to interpretation and may be deemed as a violation of the US Constitution.
  • New Evidence: If new evidence that proves your innocence is discovered, you may be able to have a successful writ. You may also want to consult a lawyer on factual innocence motions at this time as well.
  • Prosecution Misconduct: If the prosecution acted with malice, or used improper methods to obtain the conviction, a writ may be your best option if the appeal fails.
  • Poor Legal Representation/No Legal Representation: If you were not represented by an attorney or perhaps if your prior attorney was not able to fulfill his duties properly, you may have a chance at a successful writ.

A writ of habeas corpus is not typically the most successful of legal actions you can take, but if you are left no recourse, it may be your best option at a potential release.

Writ of Habeas Corpus in Federal Court from a Case Originating in State Court

When you are convicted of a crime, there is a general process by which you can continue to battle the conviction. This starts at the primary appeal, where you petition a higher court to review the case for legal error. If this fails, you may also enter a direct appeal to a higher court, where it can be reviewed once more, but the higher court is not required to hear out the appeal, and the process can stop there. If you wish to pursue your case even further, there is the process of filing a Writ of Habeas Corpus. Habeas Corpus is a call to the court to release you on the reasoning that your imprisonment does not stand upon legal grounds.

Habeas Corpus in California

If you wish to file a Writ of Habeas Corpus in California, you must first begin by petitioning a California superior court. If it is rejected at this stage, you can pass it along to higher courts all the way up to the Supreme Court of California. Once you petition the court for your writ, the decision on the writ will be made by the judge. The judge is the one who determines whether or not the writ is valid for being permissible, meaning he makes the determination whether the writ has the potential to be honored. If it does not, the writ will be rejected right away. If the judge finds that there are any questions as to the legality of your confinement, a hearing will be conducted so that these issues may be examined in greater detail.

Moving Your Writ up to the Federal Level

If the court does not approve your writ, you do have the option of moving your writ from California state courts to the federal level. In order to do this, you must prepare your writ to show that the terms of your imprisonment are in violation of the U.S. Constitution or of federal law. Therefore it is appropriate that a federal court examine the claim to properly rule on the issue of federal law and/or constitutionality. The writ must be filed after you have taken every possible measure through the State of California. On top of this, your case must be very well constructed to even reach the level of consideration, and it must present either a glaring flaw or an obvious error in law.

Moving a writ of habeas corpus up to the federal level is a very high-level legal maneuver. Due to the challenging nature of this move, you will want to discuss this at length with your attorney. A writ of habeas corpus requires a very high standard to be successful, so it is important to have the right attorney at your side as you prepare to file.