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?
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