Bail Pending Appeal or Application for Probation
A Matter of Right
A defendant who has been convicted of a noncapital offense may request release on bail, pending probation or appeal. Bail is a matter of right under the following circumstances:
- Before judgment is pronounced, pending an application for probation in misdemeanor cases. [PC §1272(1).]
- When an appeal is from a judgment imposing a fine only, whether for a misdemeanor or a felony. [PC §1272(1).]
- When an appeal is from a judgment imposing imprisonment in misdemeanor cases. [PC §1272(2).]
A misdemeanor defendant whose probation is revoked and reinstated to include a jail term is entitled to release on bail pending appeal. In re O’Driscoll (1987) 191 CA3d 1356, 1359.
However, there is a split of authority as to whether a defendant convicted of a felony and committed to jail as a condition of probation is entitled to release on bail pending an appeal. See In re McCaughan (1956) 142 CA2d 690, 692, and In re Torres (1947) 80 CA2d 579, 581. But see People v McNiff (1976) 57 CA3d 201, 205.
Tip: Before fixing bail confirm that the defendant has filed a notice of appeal.
When the defendant has been convicted of multiple offenses, you may release the defendant on bail only if a notice of appeal has been filed for each judgment. People v Walters (1954) 123 CA2d 184, 185.