Can a sentence be imposed while appealing conviction?

UPDATED: Jun 25, 2011

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Can a sentence be imposed while appealing conviction?

I was convicted of a misdemeanor following a trial. I submitted a notice of appeal and am appealing the conviction. The sentence was 90 days jail and 4 years probation. I remain free on the original bond pending the outcome of the appeal. Now the judge has ordered me to serve the probation part of the sentence immediately, while still going to court on the appeal. The jail time has been “stayed” pending the outcome of the appeal and my bond remains in effect. Is that allowed? I thought that my sentence could not be imposed until the outcome of the appeal. Am I mistaken?

Asked on June 25, 2011 under Criminal Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You are incorrect, unfortunately; it is always up to the court to decide whether to stay a sentence--or, for that matter, in civil court, whether to stay an eviction, the effect of an injunction or declaratory judgment, etc.--pending appeal. Consider: how often do you read in the newspaper about someone in jail--i.e. someone who's sentence has already been in effect, sometimes for years--who wins a reversal of his sentence or a new trial on appeal? That happened because the sentence was imposed while the appeal was still pending or ongoing. In this case, the judge decided to not have you do the jail time while appealing, but to be on probation, which essentially means to keep you nose clean and not cause trouble--something you'd be well advised to do anyway, while appealing. It's within the judge's discretion, or the judge's option, to do this.

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