Written by attorney James Donald Garrett

How Do I Appeal My Criminal Conviction In Virginia?

All states have at least two types of courts: trial courts and appellate courts. While some of the smaller states only have the two levels, most states have three levels of courts: trial courts, intermediate appellate courts, and a supreme court. Virginia has four levels of courts: General District Courts, Circuit Courts, Courts of Appeal and the Virginia Supreme Court.

The General District Courts include traffic court, small claims and minor civil court, juvenile and domestic relations court, and criminal court. In Virginia, all General District Courts are referred to as “courts not of record". This simply means there are no juries and no official transcript of the various trial proceedings. The procedure is rather informal, usually having the parties and witnesses standing at the bench before the judge. For criminal trials, the General District court may make final rulings on all misdemeanor and traffic cases, and preside over preliminary hearings for felony charges. The only record of the events are the few handwritten notes by the judge on the charging documents (summons, warrants, etc.) Since the General District Courts are not a court of record, any litigant, civil or criminal, has an absolute right to appeal any decision of the court to the Circuit Court; and there is no requirement for any reason be given for the appeal. All appeals must be noted with the General District Court Clerk’s office within 10 calendar days of the date of conviction.

Circuit Courts in Virginia are the primary trial courts. Most every Circuit Court proceeding is “on the record" and all criminal defendants have a right to a jury trial. For criminal matters, Circuit Courts are charged with trying all felony criminal charges, appeals for all misdemeanor and traffic charges. When hearing an appeal from General District Court, the Circuit Court hears the matter de novo, meaning they hear all of the evidence and make a ruling on the evidence. In most cases, the evidence may be the same as the evidence heard in General District Court, but it is not required. Anyone who appeals a case to Circuit Court may present different evidence or opt not to present some evidence they did in lower court. The Circuit Court will make its own ruling based on the evidence presented in Circuit Court without regard to the evidence and decision of the lower Court. That decision may be the same or different that the lower court ruling, and if the Court does find the evidence sufficient for guilt, may issue a punishment more or less severe than the lower court. All appeals from the Circuit Court are by a Petition to the Virginia Court of Appeals. Notice of the appeal must be filed within 30 calendar days of the date of conviction.

The Virginia Courts of Appeal are the intermediate appellate courts in Virginia. Defendant’s in non-capital cases (death penalty cases) do not have a right to an appeal any conviction in Circuit Court. After noting the appeal with the Circuit Court Clerk’s office, the Defendant must provide the Court of Appeals with a copy of the record from the Circuit Court trial. Once the record has been filed, the Defendant must file a Petition for Appeal to the Court of Appeals within 40 days. If the Petition for Appeal is accepted, briefs are submitted by both sides and oral arguments may be scheduled. The Court of Appeals only makes rulings on application of Virginia laws based on the evidence that was previously heard. The Court does NOT hear any additional testimony or consider any evidence not previously presented at trial in Circuit Court. If the Court of Appeals denies the Petition or Affirms the conviction after considering the Briefs and argument of counsel, the case may be appealed to the Virginia Supreme Court within 30 calendar days.

The Virginia Supreme Court is the highest court in the Commonwealth. The process and procedures for matters being heard by the Virginia Supreme Court are similar to those of the Court of Appeals. Except for matters involving Federal laws or issues raised under the U.S. Constitution, all decisions of the Virginia Supreme Court are final.

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James Garrett Garrett Law Group, PLC [email protected] (757) 422-4646 - 24 hour Service

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