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Does accepting a plea automatically give up my right to appeal?

New York, NY |

I'm afraid the DA's offer will increase if I try to appeal - although I think I have a case if I appeal. I'd like to accept the offer and then appeal. Can I do that?

Attorney Answers 5


  1. It depends. Sometimes you have to waive appeal as part of the deal and sometimes they don't ask for it. What are you seeking to appeal? Have there been any substantive rulings? An appeal is not a fresh look at the case it is just a review of the rulings previously made. Be careful you understand what is going on. A DA cannot raise an offer if you try to appeal because you have already been convicted. If you win the appeal the case can go back to where it was and the DA could, in theory, raise the offer then.

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


  2. You only give up your right if you agree to waive it. Otherwise, it is always your right.

    Joseph A. Lo Piccolo, Esq.
    Immediate Past President, Criminal Courts Bar Association 11'-12'
    Hession Bekoff & Lo Piccolo
    1103 Stewart Ave, Suite 200
    Garden City, NY 11530
    516-408-3666 (o) / 516-408-3833 (f)
    Jlopiccolo@hbclaw.net

    I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.


  3. You have a right to appeal UNLESS you waive that right. Many times one of the terms of your plea will be waiver of the right to appeal.
    You should be discussing this with your attorney.

    Law Office Of Michael Marley
    Phone 917 853 4484


  4. The right to appeal is yours but more and more prosecutors are requiring defendants to give up that right pursuant to plea agreements.

    There are some appellate issues that may not be waived like jurisdiction or if you did not knowingly, intelligently and voluntarily plead guilty or did not knowingly, intelligently and voluntarily give up your right to appeal. However, you must preserve this issue by moving to withdraw your plea or waiver of appeal in the trial court before sentencing or by filing a section 440 motion to vacate the conviction on that basis before you pursue the appeal to get back your plea.

    There are also some circumstances where you may give up your right to appeal while reserving your right to appeal the trial court's denial of a suppression motion. Certain other constitutional rights impacting the decision to plead guilty like the right to effective assistance of counsel or mental or medical competency or the constitutional right to a speedy trial may also survive the waiver of appeal.

    You should discuss the matter with an attorney especially if something induced you to plead guilty and it was not recorded in the transcript.


  5. The DA will likely not increase the offer if you state an intention to appeal, but the DA may require you to waive an appeal. You can take the plea and then appeal (even on certain issues despite a waiver of appeal). You have 30 days after the judgment of conviction to file your notice of appeal.

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