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Appealing a Conviction
An acquittal ends a case, but convictions are subject to appeal. Learn about the appeals process here.
By Paul Bergman (//www.nolo.com/law-authors/paul-bergman.html), UCLA Law School
Professor

A "not guilty" verdict on all charges normally ends a criminal case (https://www.nolo.com/legal-
encyclopedia/charged-with-crime-how-29677.html)—the prosecution cannot appeal an acquittal. A guilty
verdict on some or all charges, however, doesn’t necessarily mean the case is over. Defendants who
think they’ve been wrongfully convicted can:

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make a motion asking the trial judge to overturn the jury’s guilty verdict and enter a verdict of not
guilty
move for a new trial—that is, ask the judge to set aside the jury’s verdict, declare a mistrial, and start
over, or
appeal or seek a writ (https://www.nolo.com/legal-encyclopedia/appeals-the-writ-habeas-corpus-
faq.html#answer-1736323), which means asking a higher court to reverse a conviction.
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An appeal is a request to a higher (appellate) court to review and change the decision of a lower court.
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The defendant may challenge the conviction itself or the sentence (without attacking the underlying
conviction). A successful appeal usually restores
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to the initial stages, but can sometimes end the
case altogether (such as when the appellate court finds that there’s insufficient evidence to retry the
defendant).

Appellate Framework and Procedure

The typical hierarchy of state courts consists of:

trial courts and their appellate divisions
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 intermediate appellate courts made up of three-judge panels, and
highest (“supreme”) courts consisting of seven or nine justices.

The same general hierarchy exists in federal courts, with the highest federal court being the United
States Supreme Court.

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Convicted defendants generally have a right to review by an intermediate appellate court, provided that
they comply with statutory time limits for requesting an appeal. Some appeals—in misdemeanors and
infraction cases (https://www.nolo.com/legal-encyclopedia/crimes-felonies-misdemeanors-infractions-
classification-33814.html), for example—may go to the appellate division of a superior court.

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Defendants file written “briefs” (which often are far from brief) claiming that certain errors warrant reversal
of a conviction or at least reduction of a sentence. After the government submits a responding brief, an
appellate court may hear oral argument from both sides. Weeks and sometimes months later, the
appellate court issues a written decision upholding or reversing a conviction.
If a state’s intermediate appellate court upholds a conviction, a defendant can appeal to the state’s
highest court and then to the U.S. Supreme Court. However, the higher appellate courts (the “supreme”
courts) have discretionary jurisdiction, which means that they can decide not to review a case.

Finality of Acquittals

The government cannot appeal verdicts of acquittal. However, if a trial judge rules that a convicted
defendant is entitled to a new trial, the government can appeal the new trial order. (For an exception
about the appealability of acquittals, see our article on acquittals by judges in jury trials
(https://www.nolo.com/legal-encyclopedia/can-judge-acquit-defendant-jury-trial.html).)

Example
A jury convicts Sampson of murder (https://www.nolo.com/legal-encyclopedia/homicide-murder-
manslaughter-32637.html). The judge grants Sampson’s motion for a new trial after deciding that a
jury instruction was improper. The government can appeal the new trial order. If the appellate court
decides that the jury instruction was proper, the appellate court can set aside the new trial order
and reinstate the conviction.

Raising Legal Claims

Appellate courts most often review only legal claims that defendants have made at trial. If defendants
neglect to make legal claims at trial, they usually waive those claims. For example, if a defendant asks an
appellate court to reverse a conviction because of the prosecutor’s unfair argument, the court will
probably consider the point only if the defense objected to the argument during the trial.
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Harmless Errors
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Not every error at trial merits reversal. The general rule is that defendants are entitled to a fair trial, not an
error-free trial. (Lutwak v. U.S., 344 U.S. 604 (1953).) Appellate courts generally don’t reverse convictions
unless a legal error was likely to have contributed to a guilty verdict. However, errors involving
constitutional rights require reversal, normally unless appellate courts determine that they were
“harmless” beyond a reasonable doubt.

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 Example
Arker is convicted of animal cruelty (https://www.nolo.com/legal-encyclopedia/free-books/dog-
book/chapter13-3.html). The appellate court decides that the trial judge erroneously forbade Arker
from representing himself. The right of self-representation (https://www.nolo.com/legal-
encyclopedia/does-self-representation-criminal-case-29971.html) is so fundamental—even if
representing oneself is normally a bad idea—that this erroneous denial results in automatic
reversal of the conviction.

Sentencing Appeals

Even when upholding convictions, appellate courts can review sentences. For example, an appellate
court might uphold a conviction but reduce the sentence by 30 days if the trial judge neglected to credit
the defendant with the month that the defendant spent in jail prior to trial. (For more in this area, see our
article on appealing a sentence (https://www.nolo.com/legal-encyclopedia/appealing-sentence.html).)

Appealing After a Guilty Plea

Defendants who plead guilty can appeal. But the grounds for appeal are generally very limited. For
example, a defendant can appeal and his conviction may be set aside if his attorney failed to advise him
of the effect of a guilty plea on his immigration status (https://www.nolo.com/legal-
encyclopedia/immigration-risks-pleading-guilty-no-contest.html). (Padilla v. Kentucky, 559 U.S. 356
(2010).) Other kinds of ineffective legal representation (https://www.nolo.com/legal-
encyclopedia/ineffective-representation-plea-bargains.html) can be grounds for challenging a conviction,
even when the defendant has pleaded guilty. (For more on appealing after a guilty plea, see our article on
conditional pleas (https://www.nolo.com/legal-encyclopedia/conditional-pleas.html). For information on
undoing a plea, read about withdraw a guilty plea (https://www.nolo.com/legal-encyclopedia/withdrawing-
guilty-plea-criminal-case.html))

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If you’ve been convicted of a crime and want to challenge the conviction or sentence, consult an
experienced criminal appellate lawyer. Appellate lawyers have special expertise regarding the appeals
process and can provide a neutral analysis of your chances.

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