HOW TO WIN YOUR CRIMINAL APPEAL IN VIRGINIA
Virginia criminal appeals
How to Win Your Criminal Appeal in Virginia State Courts
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.
10 days
Appeal from General District Court
From the General District Court, you have ten calendar days to note 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.
30 days
Appeal from Circuit Court
In the Circuit Court, you have thirty (30) calendar days from the date the final sentencing order is entered to file a notice of appeal. If you don’t file the notice by then, you permanently lose your appeal.
Appealing a criminal case from the Circuit Court
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File a written notice of appeal within 30 calendar days
The first step to appeal is to file a written notice of appeal with the clerk of the circuit court where you were convicted. You have thirty (30) calendar days from the date the final order—usually the sentencing order—is entered. If you don’t file the notice by then, you permanently lose your appeal. See Rule 5A:6.
Virginia has two appellate courts—the Supreme Court and the Court of Appeals—and criminal appeals from the circuit court go to the Court of Appeals of Virginia first. Since January 1, 2022, every person convicted of a crime in circuit court has an appeal of right to the Court of Appeals. See Va. Code § 17.1-406(A). A $50 filing fee is due to the Court of Appeals within ten days after it receives the notice of appeal; the fee may be waived for an indigent defendant. These procedures are familiar to an experienced Virginia appellate lawyer.
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File the transcript within 60 days
After filing the notice of appeal, you’ll want to file a transcript of the trial. The transcript must be filed in the trial court no later than 60 days after entry of the final order. See Rule 5A:8. 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.
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File the opening brief
Perhaps the most important part of the appeals process is the opening brief, which is due 40 days after the record is filed in the Court of Appeals. See Rule 5A:19. The opening brief 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. The brief must state precise assignments of error, and the Court of Appeals generally will not consider an argument unless an objection was made at trial. See Rules 5A:18 and 5A:20. Often Virginia appeals attorneys have a different set of skills than trial attorneys.
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The Commonwealth’s brief and your reply
The Commonwealth, represented by the Attorney General’s office, will file a brief opposing you. You then may file a reply brief within 14 days, answering the Commonwealth’s arguments. See Rule 5A:19.
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The hearing — oral argument before a panel of judges
The Court will ordinarily grant you the opportunity to go before a panel of three judges and tell them why you should receive relief from the conviction. Oral argument is not guaranteed: the panel may decide the case without argument if it unanimously concludes that the appeal is wholly without merit or that the issues have already been authoritatively decided. See Va. Code § 17.1-403.
If you are heard, 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.
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The decision — and further review
After this, you’ll receive a decision on your appeal. 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.
If you’re unsatisfied, you may petition the panel for rehearing, or petition the full seventeen-judge Court of Appeals for rehearing en banc, within 14 days. See Rules 5A:33 and 5A:34. You may also seek review in the Supreme Court of Virginia by filing a notice of appeal and a petition for appeal within 30 days. See Rules 5:14 and 5:17. Unlike the appeal to the Court of Appeals, review in the Supreme Court is discretionary—the Court must first agree to hear your case.
Why you should hire an attorney to represent you on appeal
Throughout this process, you’ll want to have an experienced appellate 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 appellant’s 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.
Appeals attorney
Andrew T. Bodoh, Esq.
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.
Appeals attorney
Jonathan M. Arthur, Esq.
A skilled appeals attorney who has argued numerous cases before the Virginia Supreme Court and Virginia Court of Appeals.
Just a few of the appeals by this law firm
Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.
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 vacating trial court sanction.
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 argument – 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 offense 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, Va. Ct. App. Mar. 15, 2022 · Oral argument – 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 F.2d 1363 (4th Cir. 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)
Workers’ 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.
Need help?
To discuss assistance from this firm, you should contact the firm immediately due to the time constraints.
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
