CAN A CRIMINAL APPEAL RISK A DEFENDANTS SENTENCE TO BE INCREASED/HEIGHTENED?? DO WE HAVE TO ORDER A RETRIAL IF ERRORS ARE FOUND?

Asked almost 2 years ago - Orlando, FL

Our case is about to file the initial briefs by the end of this month. We are trying to play the safest options here. We did not goto trial, rather entered a No Contest plea to the judge & she handed down the sentence the day at sentencing. Our Trial attorney did his "part" & then left our case, but before we detained him he filed our case to be on appeal & now we have a Public Defender about to handle our "appeal". We do NOT want to goto trial or withdrawal his plea or pursue the risk of his sentence to be heightened, Would pursuing with this appeal risk the defendants sentence to be heightened? would it make us demand a retrial?

Additional information

****I can't make a decision on the best answer Mr. Trabin & Joshua Sachs both have the best answer, Thankyou!

Attorney answers (5)

  1. Eric J Trabin

    Contributor Level 19

    11

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    Answered . Generally no, you won't get a worse sentence if you appeal and lose. If you appeal and lose then the sentence remains in effect. In your situation, it sounds like you are talking about withdrawing a plea of no contest. If you are successful then yes it is possible you could get a worse sentence. Withdrawing the plea doesn't make the case go away, it simply sets the case back for trial. You could end up with a worse sentence if the judge hears facts that make them think it deserves more punishment. Plus it is really hard to convince a judge to vacate the sentence and withdraw a plea of no contest.

    This is not to be considered legal advice nor does an attorney-client relationship exist.
  2. Mary Catherine Bonner

    Contributor Level 7

    7

    Lawyers agree

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    Answered . The answer is no except in smoe very rare cases where you have another intervening conviction. Very , very rarely a concern.
    You deserve to have these questions answered by your lawyer. It does not matter if you have had a public defender appointed or not.
    You need to find out what the lawyer believes are or may be the problems with your plea, if any.
    Very recently the united states supreme court has confirmed that you can challenge the effectiveness of counsel at plea.
    Depending on the circumstances your appeal may seek a new trial but if you win on insufficient evidence the case will be over. No conviction or. Probation. Please look at mywebsite and if you are interested in retaining counsel, please contact me.

    Good luck
    Kate bonner

    of course, you and i are not forming an attorney client relationship. Representation in Florida Courts and... more
  3. Joshua Sachs

    Contributor Level 19

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    Answered . As a rule with few exceptions you cannot receive a higher sentence after taking an appeal. Two exceptions that come immediately to mind are (1) that if retrial or resentencing is ordered and the defendant has committed another crime or other aggravation since the original sentence, the new information can be considered in imposing the new sentence and (2) if the original sentence was actually illegal, and therefore void, the new sentence must comply with the law even if that means it must be higher than the original. I do not know the law of Florida, but it sounds as though it would be very difficult, probably impossible, to ask for a "retrial" on appeal after pleading No Contest. I find it hard to imagine a situation in which the appellate court would insist that you go back and take a trial of this case. I could see situations where it might offer you that option. I suggest you ask the attorney who is handling the appeal. When I used to work as a State Appellate Defender attorney my colleagues and I were always happy to respond to questions from our clients.

  4. Michael Steven Pollok

    Pro

    Contributor Level 11

    4

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    Answered . This would be an appeal to effectively withdraw a no contest plea? If that is the case then you are taking a risk by appealing in my opinion. However, the answer to this question may be complicated and you should discuss it thoroughly with your attorney. Generally, if you succeed in withdrawing your plea on appeal, you will be placed back in the position you were in before you pleaded guilty. The charges that were pending against you at that time will be reinstated and it is possible to be indicted or charged with something greater to what you pleaded guilty to since many pleas occur before an indictment is returned by a grand jury. So if you went to trial and were convicted of a higher count or additional counts than you pleaded guilty to, you might end up with a longer prison sentence than the one you are currently serving. Another scenario involves a guilty plea following a suppression hearing. In NY (I don't know about Florida) if you preserve, raise and win the suppression issue on appeal, you’d be entitled to vacate your plea and if the suppressed evidence was important to the People’s case, this could put you in a favorable position in terms of negotiating a new plea, or better your chances of acquittal if you went to trial. But if the evidence was relatively unimportant, it might make no difference in terms of the plea the People might offer, and it might not even be worthwhile to pursue the suppression issue on appeal. Again, these are calculations that would need to be thoroughly addressed with your attorney but in my opinion when seeking to vacate a plea on appeal, there are great risks if you win and the case is remanded.

  5. Ricky Louis Ferrara

    Contributor Level 4

    1

    Lawyer agrees

    Answered . Yes, your sentence may be affected, so you should consult with your assigned attorney to see if there is any benefit to attempting to overturn your plea on appeal. For example, your assigned appellate attorney may be drafting a brief to effectively un-do the plea. If successful, this would restart your case, which could lead to different results, such as a different plea offer or sentence.

    You should try to understand what path you should take asking your attorney which of the two paths is best to take, based on the facts of your case.

    This advice, despite its helpful nature, should prompt you to contact an attorney to confirm the propriety of any... more

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