HOW TO WIN YOUR CRIMINAL APPEAL IN VIRGINIA

How to Win Your Criminal Appeal
in Virginia State Courts

CALL TODAY – 804-783-2000

If you have been convicted of a crime and want to appeal, you’ll need to follow certain steps.  Some of these steps you must rigidly adhere to or lose your right to appeal.  For the rest of the process, you’ll want an experienced Virginia appeals attorney to guide your case through the appeals process.

Appeal from General District:

From the General District Court, you have ten calendar days to file your appeal with the clerk of the General District Court to obtain an automatic new trial  in the Circuit Court. This article addresses appeals from the Circuit Court.

Appeal Criminal Case from the Circuit Court:

  • Written Notice within 30 calendar days with $25.00 fee.

The first step to appeal is to file a notice of appeal with the trial court.  In the Circuit Court, you have thirty (30) calendar days from the date the sentencing order is entered.  If you don’t file the notice by then, you permanently lose your appeal.  The notice is filed in writing in the Clerk’s Office with the Circuit Court. A $50 filing fee must be submitted at the time of the filing.  Criminal cases are appealed to the Virginia Court of Appeals.  These procedures are familiar to a experienced Va appellant lawyer.

  • Filing the transcript.

After filing the notice of appeal, you’ll want to file a transcript of the trial.  You also have the option of filing a written statement of facts describing what happened at trial, which is cheaper.  However, you should avoid this option.  It’s frequently difficult to anticipate all the facts the judges will want to see written.  If you omit any of the important facts, you could lose the appeal.  Filing a transcript avoids those worries.

  • Filing the petition for appeal.

Perhaps the most important part of the appeals process if to file a petition for appeal with the Virginia Court of Appeals.  The petition for appeal tells the court why your conviction should be reversed and provides the legal grounds for your case.  You’ll need to cite plenty of case law.  Judges at the appeals stage want to know why your conviction violates the rules of law that have been established in past cases.  The ability to compare your case to prior cases could prove the critical difference in your case.  You’ll also need to know how to overcome any rule-based procedural hurdles that may threaten to block your appeal. Often Virginia appeals attorneys have a different set of skills than trial attorneys.

  • What happens behind the scenes to your petition.

You file the petition for appeal with the Virginia Court of Appeals.  Virginia has two appellate courts—the Supreme Court and the Court of Appeals—and all criminal cases (except death penalty) go to the Virginia Court of Appeals first.  The petition will go to a single judge, who will decide whether to grant your case a full hearing.  Most cases go to the judge through the staff attorney’s office.  Their turnaround time is fairly quick, averaging usually only several weeks.  Other cases randomly selected go directly to a judge’s chambers for review.  Review times there greatly vary.

If the single judge denies a hearing, you may appeal to a panel of three judges.  Only one of those judges must vote to grant a hearing.

  • If your petition is granted – Filing the opening brief.

If your petition is granted and you obtain a full hearing, you’ll file an opening brief, which will likely simply represent your petition for appeal slightly re-worded.  The only difference is usually the setting where you present it.  The Commonwealth, represented by the Attorney General’s office, will file a response brief opposing you.

  • The Hearing – oral arguments before a panel of judges.

The Court will then grant you the opportunity to go before a panel of three judges and tell them why you should receive relief from the conviction.  It’s important to answer the questions from the judges directly.  This is the only time you will have to directly speak to them.  You don’t want to waste this chance by evasive answers.  The firm of Thomas H. Roberts & Associates, P.C. has Virginia appeals attorneys familiar with this process.

  • The decision.

After this, you’ll receive a decision on your appeal.  If you’re unsatisfied, you may appeal again to the full eleven judges of the Court of Appeals, or the Virginia Supreme Court.  The argument process will largely replicate itself.  The court will take any of the following actions: (1) reverse in whole or part; (2) affirm in whole or part.  If the court reverses, it is most common to remand the case back to the trial court for a new trial.

  • Why you should hire an attorney to represent you on appeal.

Throughout this process, you’ll want to have an experienced appellant attorney.  The appeals process is full of procedural hurdles an appeals attorney will know how to navigate.  More importantly, your attorney will know how to represent your interests before the appeals court.

Appeals must comply with (1) all the Rules of the Supreme Court (Code of Virginia, Volume 11), (2) all statutory requirements.  It is the appellants’ responsibility to ensure that the transcript is filed within the established time frame and that notices are properly filed and served.   Many of the procedures are jurisdictional and require strict compliance.  See Rules of the Supreme Court.

This firm has experienced appeals attorneys able to represent you or to assist your trial attorney in the appeal.   Many good trial attorneys do not like the appeal process and welcome appellate attorneys to assist them in the appeal or to take over the representation in the appeal process.

Just a few of the appeals by this law firm:

Civil Rights – Torts

Cromartie v Billings, 298 Va. 284 (2020) – (Oral Argument – Jonathan M. Arthur, Esq.)(Reversal and remand where trial court erroneously granted police officer’s motion to strike civil rights claims for excessive use of force under 42 USC § 1983 based upon qualified immunity and unlawful search under Va. Code § 19.2-59 based upon sovereign immunity)

Liverman v City of Petersburg, 844 F.3d 400 (2016) (Oral Arguments – Andrew T. Bodoh, Esq.) (1st Amendment violations by City of Petersburg Police Department)

Cutts v Peed, 17 Fed. Appx 132 (2001)(unpublished)(rejected sheriff’s interlocutory appeal of denial of qualified immunity where deputies claimed retaliation under the 1st Amendment for opposing racial harassment in the Fairfax Sheriff’s Office)

Smith v Commonwealth, 286 Va. 52 (2013) (Virginia breached plea agreement with unlawful taking without compensation by exercise of police powers to reclassify sex offence conviction – 1st time court acknowledged Virginia Constitution’s taking clause extended beyond real property)

Fobian v Storage Tech. Corp., 164 F.3d 887 (1999)(Vacated and remanded – the trial court erred by finding it did not have jurisdiction to hear FRCP 60(b) motion to vacate judgment on the basis of fraud and newly discovered evidence)

Brown v ABF Freight Sys., Inc. 183 F.3d 319 (1999)(Collective bargaining agreement did not incorporate federal anti-discrimination laws into agreement and therefore employee not required to arbitrate ADA claims)

Goad v Va. Bd. of Med. 40 Va. App 621 (2003)(reversal of revocation of professional medical license where no evidence of standard of ethics that were violated and record devoid of evidence showing doctor performed any act likely to deceive, defraud or harm the public)

Corker v Jones 1992 U.S. App LEXIS 2328 (1992)(unpublished)(4th Circuit failed to reverse stating that police officers had probable cause to arrest a mildly mentally disabled known cross-dresser with a press pass outrageously affirming that he was unable to explain how he obtained a press pass, did not appear to be prepared to act as a reporter, had no identification to establish connection to a “news organization, was known as an eccentric person with a criminal record — since when would any of these rob him of his 1st Amendment right of being a member of the “press”??)

Domestic:

Winters v Winters, 73 Va. App 581 (2021) – Oral Arguments – 9/14/2021 (Primary issue in custody, visitation & support is best interest of children, all other issues subordinate)

Mulvey v Rhoads, 3/15 (2022)  – Oral Arguments – Thomas H. Roberts – 1/19/2022 (Constitutional Rights in Parent-Child Relationship Should Not Be Terminated without finding upon clear and convincing evidence of unfit parent and detriment to child of continuing relationship)

Tort – General

Padula-Wilson v Landry, 298 Va. 565 (2020)(Defense of Guardian ad Litem against suit by disgruntled parent)

O’Brien v Everfast, Inc., 254 Va. 326 (1997)(Reversed and Judgment for O’Brien, where shopkeeper created danger, claimant not required to prove notice)

General

Harmon v Ewing, 285 Va. 335 (2013) – (FOIA Appeal Issues)

Brubaker v City of Richmond, 943 V.2d 1363 (1991)(Reversed in part, vacated in part – where trial court improperly sanctioned young attorney where he was correct on most of the issues of law)

Martin v Univ. of Va. Med. Ctr., 2007 Va. App. (2007)(unpublished) (Worker’s Compensation Commission finding that claimant failed to adequately market her residual capacity was reversed)

Rector v Wykle, 2000 U.S. App LEXIS 23258 (2000)(vacated and remanded where trial court erroneously used 42 USCA § 1988 factors in determining sanctions under FRCP 11)

Criminal Defense

Artis v Commonwealth, 2014 Va. App LEXIS 323 (2014)(unpublished) (conviction for trespass reversed)

Roberts v Clarke, 1994 Va. LEXIS 300 (1994)(reversing and vacated trial court sanction)

  • Need Help?

To discuss assistance from this firm, you should contact the firm immediately due to the time constraints.

To discuss assistance from this firm, you should contact the firm immediately due to the time constraints.

Attorney Andrew T. Bodoh is a skilled appeals attorney who has argued numerous cases before the Virginia Supreme Court, Court of Appeals and U.S. Court of Appeals for the Fourth Circuit.

Attorney Jonathan M. Arthur is a skilled appeals attorney who has argued numerous cases before the Virginia Supreme Court and Virginia Court of Appeals.

Contact Us Immediately!

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Va 23219
804-783-2000


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