What happens after an appeal is granted?

So the court granted your appeal in a criminal case! Congratulations! So what happens now?

After an appeal is granted, most often the appellate court will remand the case back to the trial court with instructions on how to fix the errors that the lower court made. If the errors tainted the verdict, the appellate court can order a new trial. Sometimes, though rarely, it will overrule the judgment and dismiss the case.

If the case is sent back, the lower court will apply the guidance given to it by the higher court.

The party that lost the criminal appeal, however, can try to appeal the result to the next court. This is often the

• state’s Supreme Court or
• the U.S. Supreme Court.

What happens if the appellate court overrules the judgment?

Sometimes, the appellate court will simply overrule the trial court’s judgment or decision, without sending it back to fix. If this happens, then the trial court’s ruling is thrown out and the appellate court’s decision takes its place.

If the trial court’s judgment was to convict the defendant on criminal charges, then the appellate court’s ruling will acquit them and dismiss the case.

If this happens, the defendant will be released from custody. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution means that they cannot be retried for the same offense.

This is a very rare remedy on appeal, however. Most of the time when an appeal is granted, the appellate court

• will overturn the trial court’s decision, but then
• remands the case back to the trial court with instructions for how to fix the problems.

Can I get a new trial?

A common result of a granted appeal is that the case will be sent back to the lower court with instructions to hold a new trial. This often happens when the error that led to the granted appeal tainted the trial’s verdict.

When an appellate court tells the trial court to hold a new trial, there may be other instructions, as well. Implementing them can mean that the case has to revisit other preliminary trial motions or conduct a rehearing.

For example: William is convicted for robbery but his appeal is granted. The appellate court determines that the police violated William’s Fourth Amendment rights when they searched his home. The appellate court sends the case back to the trial court for a new trial and for the prosecutor to file a motion to argue that the evidence was admissible, anyway.

Criminal defendants who win a new trial after their appeal has been granted still face the risk of being convicted, again. While the appeal may have undermined the prosecutor’s case or led to the exclusion of evidence, this does not always mean that there is insufficient evidence left to secure a conviction.

However, if the trial was a bench trial – where the trial judge hears the evidence and issues a verdict, rather than a jury – then any sentence issued after a guilty verdict in the second trial should not be higher than it was in the first, unless there is new evidence to support it.

What does it mean to remand the case?

Appellate courts that grant an appeal often remand the case back to the trial court. A case remand overrules the trial court’s decision or a part of its ruling and provides instructions on how to correct the errors that it made.

The lower court then has to reconsider the case in light of the appellate court’s ruling. This may lead to a retrial if the lower court thinks that it is necessary.

How does this work in California?

In California, defendants who have been convicted in a state criminal case file a Notice of Appeal to the:

• Appellate Division of the Superior Court, for misdemeanor appeals,¹ or
• California Court of Appeals, for felony appeals.²

This Notice has to be filed within:

• 30 days, for misdemeanors,³ and
• 60 days, for felonies.⁴

These and other deadlines in the appeals process are strictly enforced.

Cases in federal court have different deadlines. They are appealed from district courts to one of the federal courts of appeals.

When filing the Notice of Appeal, the defendant’s criminal defense lawyer will also request that the appellate court receive the trial court’s records of the trial. This includes

1. the transcript of the court reporter as well as
2. the evidence presented in the court case.

The appellant, or the person making the appeal (usually the defendant), then files an opening brief. This written brief

1. explains how the trial court judge made an error,
2. supports these arguments with case law, and
3. states why the appellant is entitled to some sort of relief.

The respondent or appellee, usually the prosecutor, then files the reply brief. This breif responds to the opening brief and explains

1. why the trial court made no legal error, or
2. that the error that it made was harmless and did not affect the outcome of the trial.

After the appellate briefs are filed, the appellate court will hold an oral argument. This is where each side has a limited amount of time to make the legal arguments that support their case.

While the appeal is pending, the defendant may have a right to be released on bail.⁵

After considering the case, the Appellate Division of the Superior Court or the California Court of Appeal will issue a written decision. This will either

• grant the appeal or
• deny it.

The court will explain the rationale for either decision. If the appeal is granted, the case will either be remanded or sent back to the lower court for a new trial, or the trial court will be overruled. The losing party can try to appeal the outcome to the California Supreme Court.

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