A defendant is entitled to waive his or her right to appeal his or her conviction by a trial court. However, the waiver must be knowingly and intelligently made by the defendant. The waiver may only be made after the defendant's right to appeal has accrued.

In order for a defendant's waiver of his or her right to appeal to be knowingly and intelligently made, the waiver must be free and voluntary. It cannot be coerced or induced by coercive measures. The defendant must also be mentally competent to make the waiver. The defendant must have the capacity to understand his or her situation and must be able to make a rational choice with regard to his or her appeal.

If a defendant is not mentally competent to execute a waiver of his or her right to appeal, another person may pursue an appeal on the defendant's behalf. Such a person is generally referred to as a "next friend." In order to be a "next friend," the other person must explain why the defendant cannot prosecute the appeal. The other person must also explain why he or she is in a position to represent the defendant's interests.

In order to waive his or her right to appeal, a defendant's waiver must be made after the defendant's right to appeal has accrued. A waiver after a judgment of conviction and before sentencing is generally not binding on the defendant. However, in some states, if the defendant enters a valid waiver in accordance with a plea bargain agreement, the defendant is entitled to waive his or her right to an appeal prior to sentencing if a trial court enters the same punishment that was set forth in the plea bargain agreement. But, even in those states, the trial court has the power to allow the defendant's appeal despite the defendant's valid waiver of appeal in the plea bargain agreement.

After a defendant has filed his or her notice of appeal, the defendant has a right to withdraw his or her appeal at any time prior to an appellate court rendering a decision on the defendant's appeal. The defendant's withdrawal must be in writing and must be personally signed by the defendant. If the appellate court has rendered a decision on the defendant's appeal, the notice of appeal can only be withdrawn by the defendant with the consent of the government and with the approval of the appellate court. If the appeal is withdrawn in such a manner, the appellate court's opinion is withdrawn and the defendant's appeal is dismissed.

A defendant who has been convicted of a misdemeanor may waive his or her right to appeal if the punishment in the defendant's case was only a fine and the defendant paid the fine. The defendant's payment of the fine renders any appeal from the judgment and sentence moot. However, the defendant's payment of the fine must be voluntary.

A defendant may involuntary waive his or her right to appeal by escaping from custody while his or her appeal is pending. If the defendant escapes from custody and does not voluntarily return to custody, the defendant's right to appeal will be lost and the defendant's appeal will be dismissed. However, the government is usually required to file a motion to dismiss the defendant's appeal, which motion must provide sufficient evidence of the defendant's escape and the defendant's failure to voluntarily return to custody.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.