Pros and Cons of Appealing a Virginia Conviction & Motions to Reconsider
When a person is arrested for a misdemeanor in Virginia, he is tried in the General District Court (GDC) of the county, city, or town where the crime was committed. A conviction in GDC can be appealed to the Circuit Court of Virginia within ten calendar days.
An appeal to the Circuit Court is an appeal by right, meaning that the defendant only has to ask for an appeal to get one. No one can deny the defendant an appeal as long as it is filed properly within ten days.
If the defendant appeals to the Circuit Court, several things will happen. The GDC judge may issue an appeal bond if the defendant was sentenced to jail, and the GDC’s sentence and conviction will be erased. This means that the driver’s license will be returned and the driver will be released from custody once an appeal bond is paid.
Be sure to make arrangements for your attorney to help you with your appeal prior to your trial in General District Court. If you have already retained your attorney for your appeal and you are sentenced to jail in the lower court, your attorney can usually prevent you from having to go to jail.
If you have not made such arrangements, then you may have to arrange to retain your attorney or file your own appeal while sitting in jail. This may result in spending unnecessary time behind bars.
Your new trial will be held in the Circuit Court. The Circuit Court will conduct a completely new trial. The Circuit Court judges are not bound by any decision made by the GDC judge. A Circuit Court judge can punish a driver more leniently, more severely, or not at all. This is called a trial de novo.
The Circuit Court is a different court system than the General District Court. The Circuit Court has different procedural rules. For example, you can get a jury trial in Circuit Court, but you cannot have one in GDC.
The Circuit Court in some jurisdictions is located in a different building or even a different city than GDC, so make sure you know where you are supposed to go on the day of your appeal.
There are additional court costs associated with Circuit Court. Circuit Court can also have different requirements for getting a restricted driver’s license so talk to your attorney before appealing.
The decisions of the Circuit Court can be appealed to the Virginia Court of Appeals and then to the Supreme Court of Virginia. However, these courts can choose whether or not to hear those appeals. The Court of Appeals and Virginia Supreme Court will only reverse decisions by the Circuit Court if the Circuit Court made a serious mistake.
Motions to Reconsider
If you are convicted and sentenced you may be able to ask the judge to reconsider the punishment.
A motion to reconsider can only be granted if the court still has jurisdiction over the defendant. In General District Court, a judge loses jurisdiction to reconsider if the case is appealed to Circuit Court or if, after 60 days, it is not appealed.
A Circuit Court judge loses jurisdiction to reconsider a case if the defendant is transported to the Department of Corrections (i.e. prison).
Prior to filing a motion to reconsider in Circuit Court, an attorney can file a motion to stay transportation, which can prevent the court from losing jurisdiction.
Motions to reconsider should be based on new information that was not previous available at the first sentencing hearing. Post-sentencing mental health diagnosis, completion of drug treatment programs or rehab may be examples of new information that may influence a judge to reconsider.
If you believe you should file a motion to reconsider, consult an attorney immediately before your opportunity expires.
Luke J. Nichols
Nichols & Green pllc