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I want to know if you could still appeal a voluntary manslaughter case after taking a plea bargain?

Los Angeles, CA |

My brother was charge with voluntary manslaughter, and he never had a trial. He was offer a plea bargain of 12 years with a strike, and I want to know if he can still appeal his case, even though he took the plea deal?

Attorney Answers 4


  1. Best answer

    He has to first make a motion to withdraw his plea. That motion must be based on some constitutional defect in the plea. If the Court lets him change his plea then he is back where he started facing a voluntary manslaughter charge. If the Court doe not allow him to change his plea he can then file an appeal but it will only be considered if the judge that denied his motion certifies his appeal. If the judge refuses to certify then the only thing he can do is take a writ to compel the judge to sign the certification. If he wins his appeal can proceed. Clear?


  2. While I don't have the exact language of the plea deal in front of me, I can say that many plea deals have language to the effect that the defendant waives any right to appeal from the conviction. Now, this would not prevent an appeal on an ancillary issue such as pre trial detention or miscalculation of credits or ineffective assistence of counsel. However, generally after a plea deal is entered into, the defendant waives much of their appellate rights.


  3. He can file a motion to withdraw a guilty plea or if the time for that has elapsed he can file a Habeas Corpus Petition. An Appeal can be filed but his attorney in trial court has to file a Notice of Appeal and the time for that likely has expired.

    Seth Weinstein, Esq.
    Practicing throughout Southern California
    (310) 707-7131
    www.sethweinsteinlaw.com

    This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient factual/legal documentation to give a complete answer to your question and there may be more to the issues you raised then I have set out in my brief reply.


  4. Your question doesn't mention when your brother was sentenced. If it past 60 days, then he missed his deadline for filing his notice to appeal. Even if it is not to late, he will need a certificate of appealability from the sentencing judge. Since most judges are very careful when taking a plea, they generally won't sign a certificate of appealability. Exactly what would he be appealing?

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