In California, a “motion to stay sentence pending appeal” asks the trial court to delay the sentence while the defendant appeals their criminal case. If the judge grants the motion, the imposition of the sentence will be temporarily paused until the appellate court rules on the appeal.
What it would do
If successful, a motion to stay sentence pending appeal, also known as a stay of execution motion, would suspend the enforcement of the judgment for your criminal conviction while you appeal it. While your appeal is being resolved, you would not have to:
- go to jail or prison,
- pay criminal fines, victim restitution, or any other money judgment,
- be put on probation,
- perform community service, or
- suffer any of the other penalties that the court would impose in the conviction.
The only exception is your requirement to register as a sex offender.[1] You would still be required to register.
However, the court will likely impose some conditions for your continued release during your appeal, such as:
- posting bond,
- travel restrictions, including surrendering your passport,
- drug or alcohol testing obligations,
- home detention or electronic monitoring, often with an ankle bracelet,
- regular meetings with a probation officer, and
- restraining orders for any witnesses or alleged victims in your case.
These conditions will continue until your appeal is complete. If you do not comply with them, your release can be revoked, and your sentence will be executed.
For example: Mary is charged with shoplifting. She argues that she was the victim of police entrapment at trial, but she gets convicted and sentenced to 6 months in jail. She appeals her conviction, arguing that the trial court judge misapplied entrapment law. She also files a motion to stay her sentence pending appeal. The judge grants it and she does not have to go to jail while her appeal is pending.
Why to file a motion to stay pending appeal
The main reason to file a motion to stay pending appeal is to avoid the penalties of the criminal conviction, like the payment of money or serving prison time. By delaying their imposition until after the appeal is decided, you can live and work as you normally would, except for the conditions of your release.
From the perspective of the criminal justice system, a motion to stay execution can avoid the situation where you win your appeal, but would have already served your sentence. This can be very unfair to defendants. It also preserves the status quo between you and the prosecutor and prevents you from suffering the irreparable harm of the criminal sanctions.
When to file it
You would file a motion to stay sentence pending appeal:
- after filing your notice of appeal, and
- before your deadline to surrender to serve your sentence.
The criminal defense lawyers at our law firm have found that it is generally a good idea to begin drafting the motion right after your conviction in the trial court proceedings. This gives you enough time to craft a compelling argument to stay your sentence.
What factors California courts consider
In California, the trial court judge will consider the following factors, as well as others, when deciding how to rule on a motion to stay execution:
- whether the judge deems that you are likely to prevail on appeal,
- your flight risk,
- whether you seem to be a danger to the community,
- how long your prison sentence is,
- how much of a hardship the sentence would cause you and your family, and
- the nature of the conviction.
Our criminal defense and appellate attorneys have found that motions to stay a sentence are more common for less serious crimes, particularly nonviolent ones.
How to file a motion to stay execution
According to the California Penal Code:
“An appeal to the Supreme Court or to a court of appeal from a judgment of conviction stays the execution of the judgment in all cases where a sentence of death has been imposed, but does not stay the execution of the judgment or order granting probation in any other case unless the trial or appellate court shall so order. The granting or refusal of such an order shall rest in the discretion of the court.”[2]
This means that there is only an automatic stay of your sentence if it is a death sentence. In all other cases, you must ask the court to stay the execution of your sentence while you go through the appeals process.
To file your motion to stay the execution of your sentence in California, you would:
- file your notice of appeal within 60 days of the conviction,
- write the motion to stay your sentence pending your appeal, including detailed and supported arguments as to why there is good cause for the court to do so,
- file the motion with the superior court where you were convicted,
- serve a copy of the motion on the prosecutor or district attorney’s office,
- request a hearing on the motion, and
- go to the hearing and make your case in support of the motion.
If the judge agrees with you, he or she will issue a written court order to stay your sentence.
If the court denies the motion
If the judge does not agree with you, he or she will deny the motion and impose the sentence. You can then either:
- accept this outcome and surrender yourself for your sentencing, or
- appeal the denial by filing a writ of supersedeas with the appeals court, also known as a California Court of Appeal.[3]
If you appeal, the decision on the motion to stay your sentence will be made on the record. You will not be allowed to present new evidence or arguments to the reviewing court.
If you lose your appeal
If you file a motion to stay execution pending your appeal but then you lose your appeals case, the stay will be lifted. You would have to surrender yourself and begin serving your sentence.
If you win your appeal
If you win your appeal, the appeals court or the California Supreme Court can:
- reverse your conviction and dismiss the charges,
- order a new trial, or
- remand the case to the lower court with instructions for how to proceed.
This can mean that the sentence that has been delayed gets thrown away.
Legal Citations:
[1] California Penal Code section 1243 PC.
[2] California Penal Code section 1243 PC.
[3] See California Rules of Court 8.824 and In re Fishman, 109 Cal.App.2d 632 (1952).
