When an appeal has to be filed depends on the court. For an appeal in the Virginia Circuit Court, the person appealing has to file the appeal within 10 days of the final order of the General District Court. If it is an appeal to the Court of Appeals from the Circuit Court, the defendant or his/her attorney has to give notice to the Circuit Court of the appeal with 30 days of final judgment.
Once the Circuit Court files the record with the Court of Appeals, the appellant has 40 days to file a petition for appeal with the Court of Appeals. With appeals to the Virginia Supreme Court from the Court of Appeals, the appellant or his/her Virginia appeals attorney has to file notice with the Court of Appeals within 30 days of the final judgment and, within that same period, has to file the petition for appeal with the Virginia Supreme Court.
Any bond determination can be appealed to the Court of Appeals from the trial court by the defendant or the prosecution. If a defendant is convicted in the trial court, sometimes the court will issue what’s called an appeal bond, which enables a defendant to remain out of jail during the appeal if the jail sentence had been imposed.
If they refuse to issue a bond, then that determination, as well as the judgment itself, can be appealed to the Court of Appeals. But additionally, a Virginia appeals attorney can appeal a denial of bail before trial to the Court of Appeals if he/she feels that that determination was made in error and that appeal can proceed before even the trial even commences on just the issue of whether the defendant should be granted bail.
Sometimes a court can give a single extension of 30 days if a panel of three judges finds good cause for missing a deadline, but this is one of the most important reasons to retain an appellate attorney in Virginia.
You do not want to be in a situation where your right to appeal a mistake of the trial court is contingent on judges finding that there was good cause for a mistake to be made or a deadline missed. You shouldn’t rely on being able to file an appeal if you miss a deadline, although it is not absolutely forbidden.
Jury instructions are the source of a lot of appeals because it’s essential, if a jury is finding facts in a case, that they’re able to apply those facts to the law that’s properly given to them to determine whether a defendant is guilty or whether a party should be liable for civil damages. The juries are only responsible for finding the facts. It is the responsibility of the court to tell the jury what the law is.
If the court drops the ball and gives the jury an instruction that misstates the law, or that’s unclear, or that has the potential to give the jury an impression about the law that’s not accurate, then that is definitely an issue that can be appealed to the Court of Appeals.
Often if that is successful, the Court of Appeals will vacate the judgment of the trial court and will give a description of what the correct jury instruction would have said or would need to say. The case would then be remanded back to the trial court. At trial, the new correct jury instruction would have to be given unless the case was resolved by an agreement, or a settlement, or a plea deal.
In a way, the Virginia Supreme Court is something like a jury of seven people. It is kind of analogous to that. Unlike a jury in a criminal case, which consists of 12 people who must be unanimous in convicting a defendant, on the Supreme Court, all it takes is four justices to rule against you. There could be three justices on the Supreme Court who feels that the trial court has made an error that has prejudiced a party and resulted in an outcome that shouldn’t have happened.
But if the other four do not find that way, then the appeal is still denied. There’s no requirement of unanimity. The appellee needs to convince only four people that the judgment should stand.
Someone who has appealed a decision only to receive a harsher decision on appeal will not be able to choose which sentence they receive. This is a risk of any appeal – even if they are successful and the case proceeds back to the trial court for a new trial, it’s entirely possible that the appellant/defendant could receive a harsher punishment that they received at the trial court. This is not like if you take the SAT twice and you get to keep the highest score.
The new judgment would supplant the old judgment. It’s very important that a Virginia appellate attorney has the judgment to evaluate the case based on the likelihood of that outcome and also to communicate with the trial attorney so that both attorneys are aware of what would be the realm of possible outcomes if and when the case came back to the same trial court that it was in before.
The burden for informing someone of their right to appeal lies with the trial attorney. Anytime a defendant is entering into a plea agreement, the trial attorney has an obligation to explain what the defendant is agreeing to and if the defendant is waiving certain rights, to let him know what those rights are.
It is very important that the trial attorney and the defendant be on the same page and both know what they are agreeing to before they formally enter into a plea agreement, which can result in waiver of certain rights, such as the right to appeal.
Often there will be a signed agreement describing what is being agreed to and in court the judge will require the defendant to engage in what’s called allocution, which means the defendant is admitting in open court that he has committed the necessary act to be convicted and is aware that he is foregoing certain constitutional rights.
If one of those rights is the right to appeal, then he/she has to be aware of that and it is the job of the trial attorney to ensure that the defendant is aware of that.
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