Yes. Colorado law allows, in extremely limited circumstances, a defendant who has been convicted to seek release on bond while an appeal is pending. This is called an appeal bond or release pending appeal. It is important to understand that this relief is rarely granted.
Colorado statute C.R.S. § 16-4-201 and § 16-4-202, together with Colorado Appellate Rule 8, permit a trial court — and in rare cases an appellate court — to grant release only if strict requirements are satisfied. A convicted defendant is no longer presumed innocent, and the presumption shifts strongly in favor of custody once a judgment of conviction has entered.
Release may be granted only if the court finds, among other things, that:
- The defendant is not likely to flee and will appear as required;
• The defendant does not pose a danger to any person or to the community;
• The appeal is taken in good faith and is not for purposes of delay; and
• The appeal presents a substantial question of law or fact likely to result in reversal, a new trial, or a sentence that would not include incarceration.
In practice, the last requirement is the barrier. The court must be persuaded not merely that an appeal has been filed, but that the appeal raises a serious legal issue with a real possibility of success. Because most appeals challenge discretionary rulings or fact findings — and because the conviction itself has already been affirmed by the trial process — courts almost never conclude this standard is met.
To request release, a defendant must file a written motion demonstrating that his or her circumstances satisfy the statutory and rule-based criteria. The motion is filed in the trial court and served on the prosecuting attorney.
After filing, the trial court may hold a hearing. The court may consider the nature of the offense, the sentence imposed, the defendant’s criminal history, ties to the community, prior compliance with bond conditions, and public safety. Even where a defendant previously complied with pretrial release, courts frequently deny release after conviction because the legal standard is significantly higher.
If release is granted, the defendant must post an appeal bond and comply with any restrictions set by the court. The prosecution may seek review of that order, and the appellate court may revoke the release.
Because a conviction eliminates the presumption of innocence and the defendant is now serving a lawfully imposed sentence, release pending appeal is the exception rather than the rule. In most cases — even meritorious appeals — defendants remain in custody while the appeal proceeds.
CO Rev Stat § 16-4-202 (2024):
(1)(a) After conviction, either before or after sentencing, the defendant may orally, or in writing, move for release on bail pending determination of a motion for a new trial or motion in arrest of judgment or during any stay of execution or pending review by an appellate court, and, except in cases where the defendant has been convicted of a capital offense, the trial court, in its discretion, may continue the bond given for pretrial release, or may release the defendant on bond with additional conditions including monetary conditions, or require bond under one or more of the alternatives set forth in section 16-4-104.
(b) The district attorney must be present at the time the court passes on a defendant’s motion for release on bail after conviction.
(c) Bond shall not be continued in effect following a plea of guilty or of nolo contendere or following conviction unless the written consents of the sureties, if any, are filed with the court. In the initial bond documents filed with the court, a surety shall indicate, in writing and at the time of the posting of bond, if the surety consents to the continuance of the bond through sentencing of the defendant. If the surety does not provide written consent at the time of the initial posting of bond, the surety may provide written consent at the time of the plea of guilty or nolo contendere or within a reasonable time thereafter as determined by the court. A court shall not require the posting of any form of bond that allows for the continuance of said bond after a plea of guilty or of nolo contendere or following conviction without filing with the court the written consents of the sureties, if any.
(d) For a defendant who has been convicted of a felony offense, a condition of bail bond shall be that the court shall require the defendant to execute or subscribe a written prior waiver of extradition stating that the defendant consents to extradition to this state and waives all formal procedures incidental to extradition proceedings in the event that he or she is arrested in another state while released on such bail bond and acknowledging that he or she shall not be admitted to bail in any other state pending extradition to this state.
(2) After conviction, a defendant who is granted probation pursuant to section 18-1.3-202, C.R.S., may orally, or in writing, move for a stay of probation pending determination of a motion for a new trial or a motion in arrest of judgment or pending review by an appellate court. The trial court, in its discretion, may grant a stay of probation and require the defendant to post an appeal bond under one or more of the alternatives set forth in section 16-4-104. The district attorney shall be present at the time the court passes on a defendant’s motion for stay of probation after conviction.
CO Rev Stat § 16-4-202 (2024):
(1) The court shall consider the following factors in deciding whether or not an appeal bond should be granted and determining the type of bond and conditions of release required:
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- (a) The nature and circumstances of the offense before the court and the sentence imposed for that offense;
- (b) The defendant’s length of residence in the community;
- (c) The defendant’s employment, family ties, character, reputation, and mental condition;
- (d) The defendant’s past criminal record and record of appearance at court proceedings;
- (e) Any showing of intimidation or harassment of witnesses or potential witnesses, or likelihood that the defendant will harm or threaten any person having a part in the trial resulting in conviction;
- (f) Any other criminal charges pending against the defendant and the potential sentences should the defendant be convicted of those charges;
- (g) The circumstances of, and sentences imposed in, any criminal case in which the defendant has been convicted but execution stayed pending appeal;
- (h) The likelihood that the defendant will commit additional criminal offenses during the pendency of such defendant’s appeal; and
- (i) The defendant’s likelihood of success on appeal.