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

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?

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

Attorney Answers 5

Posted

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.

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Asker

Posted

Thankyou so much for answering but no we don't want to withdrawal our plea. But what happens if we WIN the APPEAL could it make the sentence worse???

Posted

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 Federal courts nationwide. Argued at the United States Supreme Court,

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Posted

Great answer Mrs. Bonner, Thank you :)

Posted

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.

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Posted

Yes you are very helpful Mr. Sachs I appreciate your answer :) Thank you

Posted

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.

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Joshua Sachs

Joshua Sachs

Posted

Mr. Pollok is certainly correct about the substantial risks you would assume in seeking to withdraw a guilty plea, by appeal or otherwise. It was my understanding from your question, however, that you did not want to do that and were attempting only to challenge the sentence.

Michael Steven Pollok

Michael Steven Pollok

Posted

I agree with Mr. Sachs and I apologize if I misunderstood your question. Challenging the sentence poses a different set of questions. If the sentence is illegal, meaning the judge made a error then an appeal should be pursued if the People and the court will not correct an illegally imposed sentence on motion. If you appeal the sentence and win, there is a presumption that the judge cannot sentence you to more time on a re-sentencing and if he does, even if the greater re-sentence is legal, the People have to show that the court increased the sentence based on new aggravating facts that were not before the court on the first sentencing. Some jurisdictions place this burden of proving vindictiveness on the defendant not the prosecutor. When I win a re-sentencing, I request a remand and re-sentencing before another judge to avoid the issue but it's often not permitted. So let's say the court initially sentenced you to two terms of 1-3 years but ran the sentences consecutively for a total 2-6 years. You take the position that running the sentences consecutively is illegal and the sentences have to run concurrently meaning three years total. So you appeal and the appellate court agrees that the sentences for the two counts have to run concurrently as a matter of law and the case is remanded for re-sentencing. The judge then re-sentences you to two concurrent terms but of 2 1/3 to seven years which we will assume is a legal sentence. You would be able to appeal again and argue that the re-sentence was vindictive because there were no new aggravating facts that caused the court to increase the total sentence after remand. There are also rules about challenging a sentence as unduly harsh or excessive but appellate courts in NY rarely reduce a sentence on that basis. Lastly, there might be issues about what you were promised at the plea and whether the judge had to give you your plea back when you got a sentence you did not expect. In most federal cases, judges will give you a sentencing range and you cannot get your plea back if the sentence falls within that sentencing range. In NY, generally speaking, you get your plea back if the judge does not adhere to the promised bargained for sentence. This is all really hypothetical and I am talking about my experiences from doing appeals in NY; I do not practice in FLorida and you need to sit down with a local lawyer in the jurisdiction and at least get a consultation. Order the plea and sentencing minutes for the lawyer to review. I hope you end up with the disposition you bargained for. There is no reason a defendant should be surprised by a sentence if they do everything that is expected of them on a plea bargain.

Asker

Posted

No worries Mr. Pollok & Thank you Joshua Sachs! Mr. Pollok thank you for the great information, I am taking notes on this. I really really appreciate your answer.

Asker

Posted

great answer

Posted

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 action taken that would affect your rights in a court of law.

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