Criminal Law

Appealing a Criminal Sentence

Talk to a Local Criminal Law Basics Attorney

In many criminal cases, there's nothing left do after you've been sentenced on a criminal conviction. The sentencing judge hands down your sentence - the punishment for committing a crime - and technically, the case is over. However, unless the case involves a traffic offense or other minor crime, a criminal sentence usually is a very serious matter. You may be looking at months or even years in jail. Because they're serious, it's not uncommon for defendants to appeal their sentences. This is a complicated process, and it requires filing paper work, meeting deadlines, and having a good reason and proof that your sentence is wrong.

Some Basics

An appeal may be filed by either the prosecution or the defendant (on appeal, the defendant is called the "appellant"). It's when one of you doesn't like the outcome of the case and asks another judge or a higher court to look at the case again for errors or mistakes. Usually, the court on appeal doesn't re-weigh the facts or the evidence. That is, it doesn't make a new, independent decision about whether you actually committed the crime. Rather, it looks at the case to see if the judge who made the decision - in your case the judge who sentenced you - made some sort of a legal mistake that makes the sentence wrong or unfair.

There are very strict rules you need to follow in an appeal. There are separate rules for federal courts, and each state has its own rules, which are usually very similar to the federal rules. To start an appeal, you need to file a certain form with the clerk of the court where you entered your plea. In the federal courts, and in many state courts, this form is called a notice of appeal.

One of the most important rules to keep in mind has to do with how long you have to file your notice of appeal. If you don't file it in time, it's very likely that a new court or judge won't look at your case. Generally, in federal courts, you have to file the notice within 10 days after the judge made the sentencing order. This time may be different if your case was in state court.

Also, you have to write and file an "appellate brief." This basically explains to the court why you think the sentencing judge made a mistake. The prosecution or government must also file a brief, which tries to explain why your sentence shouldn't be changed. You can file another brief (called a "reply" brief) if you want to disagree with anything in the prosecution's brief. There are time limits here, also. Generally, you have 40 days after the notice of appeal to file your first brief, and then 14 days after the government's brief is filed to file any reply brief.

An appeal is usually a complicated process, so you need to carefully read the rules for the court where the appeal will be heard to make sure you're doing things right. It is possible to handle the appeal by yourself, but it's usually not advisable. If you're thinking about filing an appeal, you should talk your attorney.

Who May Appeal and Why

The rules on this vary from state to state, but many states follow the federal rule about who can file an appeal and why. The defendant or the government may appeal when the:

  • Sentence breaks the law. A good example here is when either side thinks that the sentence is unreasonable, that is, either too long (if you're the defendant) or too short (if you're the prosecution)
  • Judge didn't apply the US Sentencing Guidelines (the "Guidelines") properly
  • Guidelines don't list a sentence for the crime and the sentence given by the judge is plainly unreasonable - too long or too short

The final reason for an appeal deals with time. The defendant may appeal if the sentence imposed is more than the maximum set by the Guidelines. The prosecution may appeal if the sentence is less than the minimum set by the Guidelines.

Guidelines? These are special rules that federal judges use to help determine a defendant's sentence. They use a math formula, where points are given for things like the seriousness of the crime and the defendant's criminal history. The more points, the harsher the sentence, and vice versa. Many states have adopted the federal Guidelines, or have their own version.


You need to have proof that your sentence is wrong to win the appeal. You'll have to point to specific facts and circumstances in the record where the judge made a mistake. The "record" contains everything that happened in court, such as what the judge, witnesses, and attorneys said and any "real evidence," like documents and photographs.

For example, you can't simply claim that the judge didn't apply the Guidelines properly. Rather, you have to show how they were applied incorrectly, such as that the judge didn't take into consideration the fact that you have no prior criminal record or that you showed remorse and apologized.

Gathering your proof is critical, and it's not always easy matching an error or mistake to something specific and concrete in the record. The help of an experienced criminal law attorney can mean the difference between winning and losing an appeal.

If You Win

Generally, if you win on appeal, you don't get a "get out jail free" card. Rather, your case will be sent back (called "remanded") to the sentencing judge or court for a new hearing on your sentence. The appeals court usually gives the sentencing judge detailed instructions or guidance on how to "fix" your sentence.

Questions for Your Attorney

  • I spent some time in jail while I was waiting for my appeal to be decided. If I win the appeal, I get credit for "time served" when my sentence is re-calculated, right?
  • How long does it take for an appeal to be decided? How many times can I appeal my sentence?
  • I and a co-defendant were convicted for the same crime, but at sentencing I got 5 years in prison while my co-defendant got 3 years in jail and two years' probation. Does the difference in sentences justify an appeal?
State *
* State is Required.

Criminal Law Firms in Ashburn, VA  change location

Get Professional Help

Find a Criminal Law Basics lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys
Have a criminal law question?
Submit your question confidentially.
It's simple, free and safe.
Ask a Lawyer