How to Win Your Appeal in Virginia State Courts
If you 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 final order is entered. If you don’t file the notice by then, you permanently lose your appeal. Under certain circumstances the final order may be suspended or vacated before that period expires. The notice is filed in writing in the Clerk's Office with the Circuit Court. A $25 filing fee must be submitted at the time of the filing. Domestic and criminal cases are appealed to the Virginia Court of Appeals. Most civil cases are filed appealed to the Virginia Supreme Court. 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 appropriate appeals court. The petition for appeal tells the court why the trial judge or the verdict 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 the trial judge's rulings or the verdict 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 appropriate Virginia appeals court. Virginia has two appellate courts—the Supreme Court and the Court of Appeals—and all domestic cases and all criminal cases (except death penalty) go to the Virginia Court of Appeals first. Most civil cases go directly to the Virginia Supreme Court.
In the Court of Appeals, 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.
In the Virginia Supreme Court, the petition is reviewed by staff attorneys for the writ panel of three justices. The petitioner has an opportunity to argue before a writ panel of three justices where your Virginia appeals attorney needs to convince two (as of August 22, 2017) of the justices to grant the appeal so that the case can be heard before the full Supreme Court.
- 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. In criminal cases, the Commonwealth, represented by the Attorney General’s office, will file a response brief opposing you.
- The Hearing - oral arguments.
- Before the Court of Appeals.
The Court of Appeals 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.
- Before the Supreme Court.
- The decision.
After this, you’ll receive a decision on your appeal. In the Court of Appeals, 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), and (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.
- Need Help?
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.
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 x 105
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