Bail While Awaiting Appeal

Some defendants can stay out on bail even after they've been convicted.

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People who have been accused of crime have a general right to bail pending trial. Those who post bail or are released on their “own recognizance” can stay out of custody while their cases are pending. In some instances, defendants can get out on bail even after they’ve been convicted and sentenced, while they appeal their convictions.

(For information on a different issue regarding appeals and bail, see Can you appeal a judge's bail order?)

Although there isn’t a federal constitutional right to bail during appeal of a conviction, post-conviction bail is available in several scenarios. For the most part, the laws of the individual states establish the circumstances in which defendants can bail out while they await resolution of their appeals.

Up to the Judge

Not all states allow defendants to post bail after they’ve received a jail or prison sentence. In those that do, trial court judges often have a great deal of leeway in determining whether to set bail and how high to make it. If a trial court decides the issue using the factors specified by the law, its decision will probably stand.

Crucial Factors: The Crime and Sentence

Many states don’t allow bail if the conviction was for a serious or violent crime, such as rape or murder. Similarly, some states don’t allow post-conviction bail if the trial court has imposed a lengthy sentence. For instance, a Florida court decided that a defendant’s sentence of 14 years and 7 months made him a high risk to leave the state; he was therefore properly denied post-conviction bail. (Sims v. Wainwright, 307 F. Supp. 116 (S.D. Fla. 1969).) The reasoning for prohibiting bail in similar scenarios is straightforward: Defendants convicted of serious crimes or facing long prison terms are more likely to skip town to avoid what’s awaiting them.

On the other hand, if the conviction is for a relatively minor crime or the sentence is short, trial courts are more likely to allow bail. Many jurisdictions have determined that bail should be available if a defendant’s jail sentence is shorter than the amount of time it will likely take to resolve the appeal (oftentimes a year or more). Otherwise, a defendant could win an appeal after having already served an entire jail or prison sentence.

Other Considerations

Unlike in pre-trial bail proceedings, there is no presumption of innocence after a conviction. As a result, when there's a question as to whether bail is appropriate, most states place the burden on the defendant to show that it is.

Courts use many of the same factors in post-conviction bail decisions as they do while the case is pending. These include:

  • the seriousness of the crime
  • the defendant’s criminal history
  • whether the defendant has failed to appear for court hearings in the past, and
  • the defendant’s ties to the community, such as family and employment. For example, a defendant who lives, works, and has family in the same area as the court is considered to have strong ties to the community. A defendant who committed a crime while visiting an area has less incentive to show up for court than one who lives there.

A defendant who might pose a risk to the public will have a difficult time convincing a judge to allow bail pending appeal. This situation applies to a defendant whose criminal past demonstrates poor decision making or impulsive behavior that has endangered others. Judges also consider the likelihood of the defendant continuing to commit nonviolent crimes if granted appeal.

Courts additionally need to ensure the defendant won’t intimidate witnesses or tamper with evidence if freed on bail. Potential intimidation and tampering are important considerations because a defendant might receive a new trial after a successful appeal.

Lastly, trial courts can also consider the merits of the appeal; if there is evidence that the appeal is frivolous or simply intended to delay the proceedings, the court is less likely to set bail.

Consult a Lawyer

If you’ve been convicted of a crime and sentenced to jail or prison and want to appeal, consult an experienced criminal defense lawyer. Attorneys specializing in appeals will not only be able to analyze your case, but also explain whether bail is possible and how you can get it.

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