I was charged with Aggravated Assault, Simple Assault, and Reckless Endangerment. I was found guilty of Simple Assault only, by a jury. I was sentenced to 2-4 years. I am thinking about appealing. If I win on appeal, can I get more time at a new sentencing if I lose again? Also, if I can get more time at sentencing, can you explain the full consequences of winning on appeal? Does double jeopardy apply?
The real question is: when you win on appeal, on what charges, if any, can you be re-tried? And, if you can be re-tried, can you get more time if you lose the second time?
When you win on appeal, three things can be ordered by the Superior Court. You can get a new trial, the case can be thrown out entirely, or you can get a new sentencing. The only time the issues in your question come up, is when you get a new trial.
When you get a new trial on appeal, you must look at why the Aggravated Assault and the Reckless Endangerment were originally dropped. In your example you don't say why you were not convicted of those two charges. If you were found not guilty at your trial of those two charges you can NOT be retried on those charges because it would violate double jeopardy. Since the statutory maximum on Simple assault is two and a half to five years, the most amount of additional time you could be given is an extra six to twelve months. However, the sentencing judge would have to justify why she now thinks the simple assault is worth two and a half to five and not two to four. So, most likely, you would not get more time.
However, if the district attorney withdrew on the other charges, they can re-instate the charges on the new trial, and it would not be a double jeopardy violation (however, they may have speedy trial issues by this point). The statutory maximum on aggravated assault is ten to twenty years, and reckless endangerment is one to two years. This scenario is very unlikely to occur, but it is possible.
Labels: appeal, appeals, double jeopardy, sentencing