Bail Pending a Criminal Appeal

by Rick Wetzel on December 10, 2010

There are tremendous advantages to remaining free while a criminal conviction is on appeal.  The most obvious advantages include not having to report to prison immediately and being allowed to remain with friends and family during the criminal appeal process.

Actor Wesley Snipes recently sought a month’s delay before he begins serving a three-year sentence for failing to file tax returns, so he could spend the holidays with his four minor children.  The federal judge told him “no” and he was required to go to prison while he challenges his criminal conviction on appeal.  The rules in Texas are different from those in the federal system for bail pending the appeal of a criminal conviction.

The Texas Rule

Generally, while a felony conviction is on appeal, the defendant is entitled to be released on reasonable bail.  As with any general rule, there are many exceptions.  The most notable exceptions to bail pending a criminal appeal in Texas are:

  • the sentence is 10 years or more;
  • the conviction was for violent offenses;
  • the offense involved the use or exhibition of a deadly weapon;
  • the defendant is not likely to appear when the appeal is over; or
  • the defendant is likely to commit other offenses while on appeal.

For misdemeanor convictions on appeal, a defendant is entitled to reasonable bail pending disposition of the criminal appeal. 

The Federal Rule

In the federal system, bail pending appeal is rarely granted regardless of the length of the sentence.  Generally, bail will not be granted unless the federal judge finds all of the following:

  • the conviction or sentence are likely to be overturned on appeal;
  • the defendant is not likely to flee; and
  • the defendant does not pose a danger to others while on appeal.

In the Snipes case, the judge did not find the conviction or sentence was likely to be overturned during the criminal appeal.  Snipes was required to report to prison immediately even though his conviction was for a federal misdemeanor crime.    

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