Appeal Your Sentence

Successfully appealing the sentence that you were given after you pled guilty isn’t easy, either. Here, you need to show either that your sentence is:

  • Illegal, such as when it’s more than the sentence allowed under the law, or it’s unconstitutional because it amounts to “cruel and unusual punishment” under the Eight Amendment to the US Constitution. For example, if a state law lists the maximum sentence a defendant may receive on a conviction for a certain crime and the judge sentences you to more than the listed amount, the sentence is probably illegal and may be challenged successfully on appeal
  • More than what you agreed to. If your sentence was part of the plea agreement, meaning that you and the prosecution agreed that the prosecution would recommend that the judge impose a particular sentence, you may be able to appeal your sentence successfully. Similarly, if the prosecution promised to recommend a certain sentence but it doesn’t so, you may be able to challenge the sentence on appeal

What if You Win?

Winning on an appeal doesn’t necessarily mean that your conviction will be thrown out or that you have a “get out jail free” card. That can happen, but it’s pretty rare. Usually what will happen is your case will be sent back (called “remanded”) to the judge or court that accepted your plea and/or sentenced you and you may:

  • Be given a new trial on the criminal charges, and perhaps even another chance to negotiate a plea with the prosecution
  • Have a new sentencing hearing, where, usually, the judge or court will fix the sentence so that it’s no longer illegal or follows the terms of the plea agreement. In many cases, the judge or court on appeal will give the judge specific instructions on how to fix the sentence


You can, and sometimes you may have to, waive your right to appeal after you plead guilty. At the federal level, prosecutors almost always make such a waiver part of any plea deal. In fact, the federal court rules require judges to tell defendants that they may be waiving their right to appeal by pleading guilty. You need to read your plea agreement carefully to see if there’s a waiver of your right to appeal. If so, it may allow you to appeal in some cases, such as when the judge imposes a sentence that’s more than the one agreed to in the plea deal.

If you agreed to waive your right to appeal, a court may ignore the waiver if you can show that it wasn’t knowingly and/or voluntarily waived. For example, if the waiver was never explained to you by the judge before you pled guilty, or the waiver was put into the agreement after you signed it, you may be able to show that the waiver is no good.

Questions for Your Attorney

  • How long will it take before my appeal will be decided? Can I get released from jail while I’m waiting for the appeal?
  • Do I have to pay anything when I file an appeal? What if I can’t afford it?
  • The state promised not to prosecute my wife on drug-related charges if I pled guilty and testified against the leader of a “drug ring.” Is the promise about my wife an “improper inducement,” making my plea involuntary?
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