What is a Motion to Stay a Sentence Pending Appeal in California?

Posted on January 5, 2021

A motion to stay a sentence pending appeal is when a defendant in a criminal case asks the court to stay, or pause, execution of the sentence until an appeal is heard. “Execution” in this context is when the court carries out the sentence or imposes it. If granted, this motion temporarily stops the trial court from carrying out its judgment until a defendant’s appeal is heard by an appellate court.

As a practical matter, courts generally grant this type of motion unless an appeal is frivolous or has no legal basis. Once granted, the trial court lacks the ability to modify the sentence or judgment while the appeal is ongoing.

Note that an appeal is not a new trial before a higher court.  Rather, it is a limited review of a conviction by a court of appeals (or, an “appellate court”).  The appellate court does not:

• accept new evidence,
• retry the case, or
• hear testimony from witnesses.

Instead, the appellate court reviews the trial court’s proceedings and judicial rulings to determine if there were legal errors that substantially affected the defendant’s rights.

If a defendant wins on appeal, then any of the following can take place:

• the court can reverse a conviction and dismiss the charges against the defendant,
• the court can order a new trial to take place, or
• the appellate court can remand the case or send the case back to the trial court.

What is a motion to stay a sentence pending an appeal?

Under California’s rules of court and the state penal code, a criminal defendant awaiting appeal can file a motion to stay an execution of sentence following conviction.[i]

A “stay” means a pause that prevents the court from imposing a judgment or sentence.

“Execution” in this context means “carrying out” the sentence.

If granted, this motion temporarily stops the court from carrying out its final judgment until an appeal is heard.

Consider, for example, a defendant that is convicted of trespass, pursuant to Penal Code Section 602 PC, following a jury trial. Upon sentencing, a judge orders that the defendant spend three months in county jail. The defendant may then appeal the decision.

Here, the defendant can also file a motion to stay his/her sentence pending appeal. If granted, the judge holds off on imposing the three months in jail until after the defendant files a notice of appeal and the appeal gets heard and decided upon.

While it is called a “stay of execution,” the term refers to any criminal sentence or court order. As its name suggests, it is not limited to a sentence that includes the death penalty.

Further, a defendant can file a motion after either a misdemeanor conviction or a felony conviction.

When is a motion to stay granted?

The right to stay a sentence is an essential part of the criminal defendant’s right to appeal. Courts are not supposed to deny a stay of execution while a defendant is exercising his/her right of appeal unless it is certain there were no legal errors in the trial.

While the defendant awaits appeal, an order staying execution of the defendant’s sentence will typically only be refused when the appeal is:

• frivolous, or
• has no basis.

What is the result of a stay of execution?

A stay of execution prevents all parts of a judgment from being carried out unless the trial court says otherwise.

When a sentence has been stayed pending appeal, the trial court lacks the ability to modify the sentence or judgment while the appeal is ongoing.

Note that a defendant can also file a stay of probation if he/she received probation as part of a sentence. If granted, the stay works to stop the running of the probationary term.

Note, too, that after conviction of a misdemeanor, a defendant has a right to bail pending appeal.[ii] Further, after conviction of a felony, the trial court decides whether a defendant has a right to bail pending appeal.[iii] In order for a defendant to go out on bail while awaiting appeal, the sentence must be stayed.

Where does the motion to stay a sentence get made?

The motion for a stay must be made first in the trial court. If a proper application is made in the trial court, but the trial court refuses the motion with no justification, a motion can be made with the appeals court.[iv]

The motion to stay a sentence pending appeal must be made first in the trial court.

What is an appeal?

In California, the right of appeal is guaranteed by law to every convicted person.[v] It is one of the most important rights that a criminal defendant has.

In death penalty cases, the defendant’s appeal is automatic. In other criminal cases, the defendant files a Notice of Appeal after the trial court’s judgment.[vi]

Once filed, the convicted defendant, or the party that lost in the lower court, is referred to as the “appellant” or the “petitioner.” Most defendants file a Notice of Appeal after losing a case in a California Superior Court.

Generally speaking, an appeal must be taken after a final judgment.  A “final” judgment is

• a sentence,
• a final judgment of conviction or an order granting probation,
• an insanity commitment,
• a mentally disordered offender commitment, or
• an addiction commitment.[vii]

An appeal is not a new trial. Rather, the appellate court reviews the lower court’s proceedings and judicial rulings to determine if there were legal errors that substantially affected the petitioner’s rights.

Typically, there are three remedies that a successful appeal may generate. These include:

• the appellate court may reverse an appellant’s conviction and dismiss any charges,
• the court may order a new trial, or
• the appellate court can remand a case.

As to the latter outcome, “remand” means that the case gets sent back to the trial court with instructions on how to cure any errors.  Remands normally occur when the petitioner is the victim of an illegal sentence.

[i] California Penal Code 1243. See also Cal. R. Ct. 8.312.

[ii] California Penal Code 1272 PC.

[iii] California Penal Code 1272.1 PC.

[iv] Cal. R. Ct. 8.312.

[v] See, for example, California Penal Code 1237 PC.

[vi] See, for example, Cal. R. Ct. 8.853b.

[vii] California Penal Code 1237 PC.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.