A GUIDE TO APPEALING A FELONY THROUGH THE VIRGINIA COURT OF APPEALS

Posted on by mayoras

Here is a Guide I wrote for AVVO.

Criminal Appeals in Virginia can be a confusing, lonely and way too long process for any Defendant who had the misfortune of losing a criminal case. Here is a BASIC overview of the process.

  1. Appeal for a Trial De Novo

    When a person gets convicted in the lower trial courts in Virginia (Juvenile Domestic Relations Court and General District Court) and the case has become final (not a defered disposition) that person has the right to Appeal his case to the higher trial court, the Circuit Court. The trial is called De Novo, because you will have a whole new trial as if the first trial never happened. The time limit is for an Appeal in this circumstance is within 10 days of the conclusion of the original case.

  2. Appealing to the Court of Appeals

    If a person loses a trial in the Circuit Court that person has the right to Appeal to the Court of Appeals of Virginia. That request for an appeal must be filed within 30 days of the final order in the Circuit Court. After 30 days a person will lose the right to appeal.

  3. Filing a Petition in the Court of Appeals

    Well, if you have an attorney he must request the record of the Circuit Court trial be sent to the Court of Appeals. That would include the creation of a transcript and the Circuit Court Clerk will send the record up to the Court of Appeals. When the record is recieved the next step is to write a Petition asking for the Court to Grant the Petition and hear the Appeal. The attorney has 40 days to write the Appeal. Now an Appeal to the Court of Appeals is NOT a new trial, but rather a request for the Court of Appeals to address any error in the trial down in the Circuit Court. Errors must be such that they effect the trial to your harm. The Court of Appeals will not second-guess what a trial judge or jury believed, and will not hear new evidence. The Court of Appeals will hear legal arguments based on the rulings and outcome of the trial.

  4. What happens with the Petition?

    Well the Court of Appeals can grant or deny the petition. If the Court grants the petition it does not mean that you’ve won the Appeal but rather that they will hear the case and decide the merits of the Appeal.

  5. What happens if the Court of Appeals denys the petition for Appeal?

    The Appeal is not over, but rather the Attorney can ask for a 3-judge panel to try again. He must request this within 14 days of the denial of the petition. After all the avenues have been extinguished and the Court of Appeals has denied the petition then you may then Appeal to the Supreme Court of Virginia.

  6. So the Court of Appeal has granted the petition, what now?

    The attoreny will write a brief (a paper based on his petition argument) and will argue in front of three judges of the Court of Appeals who will then decide the case. One of the three judges will write a opinion which lays out their ruling on the case based on the argument they have heard and the laws of Virgina. Depending on the circumstances they can remand the case for a new trial, reverse the case completely or rule that there was nothing wrong with the trial and that the convictions stand. If they do not rule in your favor then you may then Appeal to the Supreme Court of Virginia.

  7. Why is it taking so long?

    Well the answer to that is that there are time-limits that are triggered after every step of the process, waiting for the transcripts and record, writing the petition, waiting for the Commonwealth’s response, waiting on the Court of Appeals to set oral argument, waiting for the decision as to whether they will grant or deny the petition, if they deny waiting on them to look again with a 3-judge panel, if granted waiting on creating a brief, waiting on oral argument, and finally waiting for a decision (and we’re just talking about the Court of Appeals stage!) The Court of Appeals also works at its own pace and will not be rushed.

  8. Can I go it alone?

    You could, but it is such a rigid and technical process that an attorney would be essential. If any deadline is missed, or if the format is incorrect the Appeal can fail on technical grounds.