Criminal Law

Conditional Pleas

Most criminal cases are resolved through a plea bargain. In the typical plea deal - the one you see most often on TV or in the news - the defendant (the person accused) pleads guilty to the crime. In exchange for the guilty plea, the prosecution gives the defendant something favorable, like charging him with a less serious offense or a promise to help him get a lighter sentence than he'd get after being convicted by a jury.

After a typical guilty plea is entered, the defendant is automatically convicted of the crime, sentencing follows and the case is over. Usually an appeal won't be allowed, unless there was some mistake in the plea entry process. By pleading guilty, the defendant waives his right to appeal practically all of the legal issues in his case, like whether the prosecution had enough evidence against him.

Sometimes, however, a less common plea, the conditional plea, is used. This plea differs because the defendant reserves or keeps the right to appeal specific legal issues before his plea may be enforced.

How It Works

The mechanics of how a conditional plea works are set out in the court's rules. The process and requirements may differ depending on whether you're in state or federal court. In general most states follow the federal rule, which requires the defendant to:

  • Get the consent of the court and the government to enter a conditional plea. This means the defendant has to get express permission from the court and the prosecution to enter a conditional plea. They can say no. In other words, you don't have a right to enter a conditional plea
  • Reserve in writing any "issue" or legal question that she wants to have settled or reserved by a court on appeal, that is, what she wants a court (other than the court where she's entering the plea) to decide

If the appeals court agrees with the defendant, she's allowed to withdraw or "cancel" her guilty plea (or plea of "no contest" or nolo contendere), and she may then go to trial. If the defendant loses on the appeal, then her guilty plea will be enforced and she'll be convicted and sentenced.

In Writing

As the rule states, a conditional plea should be in writing and it should contain the exact issue or issues the defendant wants the appellate court decide. In fact, many courts have a fill-in-the-blank form that you can use. Nevertheless, there are circumstances where the lack of written plea may be excused, such as where:

  • The government never challenged or disputed the defendant's characterization of his plea as conditional or his right to appeal a specific issue
  • Something in the record - like a court's plea hearing transcript or letters between defense counsel and the prosecution - clearly show that prosecution agreed to a conditional plea and/or the judge accepted the plea
  • The appellate court agrees that its decision on the issue raised by the defendant will settle the case

If you sign a written plea agreement or otherwise agree to one that's unconditional - a "regular" plea deal in which you simply plead guilty - and never expressly request to enter a conditional guilty plea or to reserve any appeal rights, and the court and the prosecution never consented to your entry of conditional plea, then it's very unlikely that you'll be allowed to make one. It's best that you or your attorney make sure that the plea is in writing and specifies the issue you want to appeal.

Issues on Appeal

The issue or legal matter you want the appellate court to look at needs to be important to the case. It should be something that could make or break the case against you. Some good examples include:

  • The trial court denied your pre-trial motion to bar the prosecution from using evidence that you believe that the police obtained in an illegal search and seizure (called a "motion to suppress"), and because the prosecution would have been allowed to use that evidence you entered a conditional guilty plea
  • You believe that the statute of limitations on the crime you're accused of has expired and so the prosecution can't bring you to trial
  • You think the delay between your arrest and the trial was too long, violating your  Sixth Amendment speedy trial rights, so you can't be tried

Possible appeal issues depend on your case's facts and circumstances. An attorney can best help you reserve issues for appeal and make the plea that's right for you.

Advantages of Conditional Pleas

Conditional pleas can benefit both defendants and prosecutors. For the defendant, the case is resolved quickly; without a trial, legal fees are less. Also, unlike with a regular, unconditional guilty plea, she's not waiving any of her defenses or other legal issues. In fact, if she wins on appeal, she can go to trial with the knowledge that some of her defenses are good, or that that the prosecution can't use some evidence against her, for example.

Prosecutors benefit, too. A case ending promptly frees-up their busy schedules, and it's often less costly to have the defendant's appeal issues settled early on rather than having to first go through a full-blown trial.  

Questions for Your Attorney

  • My request to enter a conditional plea was denied, but I think I have a good issue for appeal. Should I enter an unconditional plea?
  • I've been given permission to enter a conditional plea and there are five things I want the appellate court to look at. The judge said I could only reserve two of my issues for the appeal. Can he do that?
  • If I lose on the appeal of my conditional plea, will the same public defender who helped me with the plea be assigned to represent me at trial?
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