How to Appeal a Misdemeanor Conviction in Virginia

Appealing a misdemeanor conviction is a tough road to travel. This article gives a brief overview of what you can expect in the process.

Last updated on April 30th, 2019

If you’re thinking about appealing your misdemeanor charge, you should contact a lawyer right away. After your conviction, you only have 10 days to appeal a decision to your local Circuit Court, and only 30 days to appeal to Virginia’s Court of Appeals.

Appealing a misdemeanor comes with many steps, and can take several months to complete.  A criminal defense lawyer, especially one who is familiar with misdemeanor appeals, can help give your case the best chance of success.

In this article, we’ll walk you through the general steps for appealing a misdemeanor conviction in Virginia.

Appealing to a Circuit Court

Historic County Courthouse, Charlottesville (Virginia - USA)

To start, the appeals process changes based on what court your case started in. If a judge from a General District Court decided your original case, you’ll need to appeal the decision to the Circuit Court. If your case started in a Circuit Court, you’ll need to appeal to Virginia’s Court of Appeals.

Most appeals begin after a conviction in General District Court, since that’s where the most trials happen. Cases that are appealed from the General District to the Circuit Court are unique in that they are tried “de novo.” This is a legal term that essentially means you’ll get an entirely new trial in the Circuit Court.

In this trial, you can use additional evidence, make different arguments, or pursue any other strategies that you think might increase your chances of release.

After you decide to appeal, you’ll have 10 days from the date of your conviction to file the paperwork with your local Circuit Court. This paperwork essentially just tells the court that you’d like to appeal your original conviction. When filing this paperwork, you’ll also have to pay a fee, which varies across each court, but is generally less than $100.

After filing your notice and paying any relevant fees and bonds, a judge will re-try your case from scratch in the Circuit Court.

Appealing to Virginia’s Court of Appeals

Stacked files in an office, old folders.

Similarly to how individuals convicted in a General District Court can appeal to the Circuit Court, people convicted in Circuit Court can appeal to Virginia’s Court of Appeals. The biggest difference between these two processes is the purpose of the appeal.

While appeals to the Circuit Court are generally for individuals who want a new trial, appeals to Virginia’s Court of Appeals are instead based on procedural or legal errors.

For example, if you think there was no evidence that supported a finding of guilt in your case, or the commonwealth failed to prove a necessary element of the crime, you should consider filling an appeal. Additionally, if there were errors in procedural matters, such as if the jury was not given proper instructions, you should also consider filing an appeal.

Notice of Appeal

Within 30 days of the judgement, you must file a Notice of Appeal to the Circuit Court that originally tried your case. Your lawyer will normally draft this notice. This Notice essentially informs the court of who won the original case, and tells them that you want a higher court to review the case.

Just like in an appeal to the Circuit Court, you must also pay a filing fee along with your Notice of Appeal. While it can vary based on which jurisdiction you’re in, it will also generally be less than $100.

In addition to your Notice of Appeal, you’ll also want to file a transcript of your trial. Since these appeals are based on errors in the original trial, having a written copy can help the judges see all the facts in your case.

File Transcript

Your attorney will order a transcript of the case from the court reporter, and file it in the Clerk’s office of the trial court. Within 10 days of this filing, your attorney has to send written notice to all parties, of the date on which the transcript was filed with the trial court.The attorney also has to file a copy of the written notice with the trial court.

Submission by the Circuit Court

The Clerk of the Circuit Court, which for our purposes is the trial court, sends the trial court record to the Court of Appeals. The Clerk will notify all parties of the date on which the record was filed with the Court of Appeals. However, this step doesn’t automatically lead to a new trial, as we’ll detail below.

Petition of Appeal

After giving notice of your appeal, and filing the record with the clerk of the Court of Appeals, the next step is to have your lawyer file a Petition for Appeal. This is, by far, the most important piece of paperwork you’ll submit throughout the entire appeals process.

This document outlines, in detail, why you think your case deserves an appeal. It will include several assignments of error that point out what went wrong in the original trial, and show why these errors justify a grant of appeal.

Unlike an appeal from General District Court, filling a petition for appeal to the Court of Appeals does not result in a new trial. Rather, it leads to either a grant or denial of your appeal. For this reason, the petition cannot add any new evidence or new arguments.

Instead, your lawyer will base the petition on the facts, evidence, and arguments presented in the original case, which they believe prove each assignment of error. Often, lawyers base these petitions on case law, which can help show how your conviction deviated from judicial norms.

Put another way, this document states, “my case was handled differently than all these other cases, and here’s why I think that was wrong.”

Brief in Opposition

After you file your Petition of Appeal, a lawyer representing the Commonwealth can and will likely file a Brief in Opposition. This document essentially states why they believe your case is ineligible for an appeal.

Misdemeanor Appeals in Virginia’s Court of Appeals

Generally, the next step is for a single judge from the Court of Appeals to review your Petition for Appeal and decide whether or not to grant your petition.

Each Petition for Appeal is referred to one or more judges from the Court of Appeals. First, a judge will look over the appeal and choose to approve or deny it based solely on your Petition of Appeal.

If they approve your appeal, the clerk of the Court will schedule a panel of judges to hear your case sometime in the near future.

If this judge instead denies your appeal, you can request to bring the case before a panel of three different judges for a second opinion. An approval from this panel will allow your case to proceed. If all three judges agree that your petition should not be granted, they’ll outline the reasons why in a written order, and your case will end at this step.

Oral Argument

The next step in your appeals process is for each attorney to appear before a panel of judges from the Court of Appeals. At this hearing, they will give an oral argument for why they believe the judges should or should not grant the appeal. Generally, each lawyer will have around 15 minutes to argue their case. The panel of judges can interrupt them as needed when they have questions.

After this hearing, the judges will consider the information on your case for some indefinite amount of time. Since there is no set deadline for their decision, this process can last for a period of several weeks to several months.

The Final Judgement of the Appellate Court

After deliberation, the judges will decide if there was indeed an error in the judgement of the original case. They’ll outline their opinions in a written document called a mandate, which will also hold their final decision.

This mandate will declare that the judges have made one of three decisions:

  • First, the judges can affirm the original judgement and dismiss your appeal entirely.
  • Alternatively, the judges can decide that errors were indeed made in your original trial. In this case, they can order a new trial in the Circuit court. Alternatively, they may decide that the error was “harmless.” This means the error did not have an effect on the verdict, and does not necessitate a new trial.
  • Lastly, they can reverse the original judgement entirely, and dismiss the case against you.

If you disagree with the Court of Appeals’ decision, you can still appeal to Virginia’s Supreme Court. However, this process is generally a long shot due to how selective the Supreme Court is with cases. Further, the process itself is slightly different from the one we’ve outlined here.

Conclusion

Two men shaking hands, laptop in the background, papers on desk.

If you believe you’re entitled to an appeal, it is critical that you hire an experienced appellate lawyer. The misdemeanor appeals process has many steps, many of which change based on which court you’re appealing to.

Making the right arguments for appeal is done best by someone who understands criminal law and has experience with misdemeanor appeals.

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