Criminal Law

How Do You Temporarily Stop a Criminal Sentence?

There are a variety of sentences that may be imposed on an accused individual, or defendant, if he's found guilty in a criminal trial. He may be sentenced to:

  • Pay a fine
  • Probation
  • Imprisonment
  • Death

The defendant may believe that he has a good chance to have his conviction reversed on appeal. This may be because of a trial defect or insufficient evidence. The defendant doesn't want his sentence to be carried out while he's trying to reverse the conviction since his main goal is to prevent criminal punishment.

In order to stop the sentence from being carried out, the defendant must file a motion to stay the sentence. A stay is a temporary suspension of a sentence while a court decision is pending. This suspension prevents the defendant from being punished in case the conviction was defective and needs to be reversed on appeal.

Staying a Sentence to Pay a Fine

If the defendant is sentenced to pay a fine, the court may stay the sentence if he appeals the conviction. The court has the discretion to decide the appropriate terms for the stay. For example, in order to stay a fine, the court may require the defendant to:

  • Deposit all or part of the fine with the court while his appeal is pending
  • Post a bond to pay the fine
  • Submit to an examination of his assets

To post a bond means the defendant formally agrees to perform a certain act, such as appear in court or to pay a fine. If the defendant fails to perform his obligation, money put up by the defendant or a surety is forfeited. A surety is another party that promises to answer for the default of the defendant. The purpose of the bond is to provide an incentive to the defendant to fulfill his obligation.

Staying a Sentence of Probation

The court may stay a sentence of probation if the defendant appeals the conviction. Probation is a period of evaluation in which the defendant must follow certain conditions, such as not leaving the state or not possessing a gun. If he fails to follow these conditions, he may be sentenced to imprisonment by the court. Just like staying a sentence to pay a fine, the court has the discretion to set any appropriate terms it wants in staying a sentence of probation.

Staying a Sentence of Imprisonment

If the defendant is released while his appeal is pending, the court must stay a sentence of imprisonment. The defendant is released if the court grants him bail, and he meets the terms fixed by the court. Bail allows the defendant to be temporarily released from prison in exchange for cash or a bond from a surety.

In order to be granted bail, the defendant must show by clear and convincing evidence that he won't flee or endanger other people if he's released pending his appeal. The defendant must also show that the appeal isn't for the purpose of delay.

If the defendant is not granted bail or fails to meet the terms fixed by the court for bail, the sentence of imprisonment won't be stayed. However, the court can recommend that the defendant be confined near the place of the trial or appeal to help him in preparing his appeal.

The defendant is entitled to credit towards his sentence of imprisonment for any time served in jail while his appeal is pending. If the defendant's appeal is denied, he'll have already served part of his sentence of imprisonment.

Staying a Sentence of Death

The death penalty is the most serious criminal punishment that can be given to a defendant. If a defendant's sentence of imprisonment isn't stayed by the court, he can be released from custody if the conviction is later found to be defective. However, the death of the defendant is final. Nothing can be done if a death sentence isn't stayed and the conviction is later overturned. Therefore, any sentence of death is stayed if the defendant appeals the conviction or sentence.

Questions for Your Attorney

  • Are┬áthere any advantages to not filing a motion to stay a sentence while an appeal is pending?
  • After a conviction is entered, how much time do I have to file a motion to stay the sentence?
  • If am granted bail, how can I be released from prison if I have no assets or money? Will the court take that into account when it sets the bail amount?
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