Legal Question in Criminal Law in California

Re: appeal

Generally a successful appellant cannot receive a harsher sentence the second time around. Convicted criminals have a right to appeal their convictions and sentences, but allowing judges to increase a sentence in retaliation for a successful appeal would discourage them from exercising that right.

There is an exception, though, where the judge mistakenly imposes a shorter sentence than the law requires. If the appellate court finds such an error it can order the defendant re-sentenced. Other portions of the sentence (for example, if the error involves only one of several different crimes of which the defendant was found guilty) still could not be increased.

Note that the government can appeal from this type of sentencing error even though it cannot appeal from an acquittal.

Such an error can also be noticed and corrected even after the deadline for filing a notice of appeal has passed. A defendant who has benefitted from such an error may choose to waive his appeal in order to reduce the odds that the error will be noticed, but such a waiver will not eliminate that risk completely.