How to Appeal a Criminal Conviction in Virginia: Steps and Strategies

Receiving a guilty verdict in a criminal case can feel like the end of the road. The weight of the court’s decision is immense, and the future may seem uncertain and bleak. However, a conviction in a Virginia Circuit Court is not always the final word. The justice system has a built-in process for reviewing trial court proceedings to ensure the law was applied correctly and that the outcome was fair. This process is known as a direct appeal.

An appeal is a complex, technical, and challenging legal undertaking that operates under a different set of rules than a trial. It is not a second chance to argue the facts but a focused examination of potential legal errors that may have compromised the verdict. 

What Is a Criminal Appeal?

A criminal appeal is a formal request made to a higher court to review the decisions and actions of the trial court where the conviction occurred. The person filing the appeal, known as the “appellant,” argues that significant legal mistakes were made during the trial or sentencing, and that these errors warrant either a new trial or a reversal of the conviction.

It is important to set clear expectations about what an appeal is and what it is not. An appeal is not:

• A new trial. No new evidence is presented, no witnesses take the stand, and a jury is not involved. The appellate court’s review is almost always limited to the existing trial record.
• A re-argument of guilt or innocence. The appellate court does not re-weigh the evidence or decide if the jury made the right call based on the facts. Its sole function is to identify and correct legal errors.

The entire focus of an appeal is on the law. The central question is whether the law was followed properly throughout the pretrial, trial, and sentencing phases. If a harmful legal error occurred, the conviction may be overturned.

What Are the Grounds for an Appeal in Virginia?

An appeal cannot be filed simply because you are unhappy with the outcome. It must be based on specific legal errors, known as “assignments of error,” that occurred during the trial court proceedings. For an error to be a valid basis for an appeal, the defense attorney must have typically made a timely objection at trial, thereby “preserving” the issue for appellate review.

Common grounds for a criminal appeal in Virginia include:

• Improper Admission or Exclusion of Evidence: The court allowed the prosecution to present evidence that should have been excluded (e.g., illegally seized evidence) or prevented the defense from presenting important evidence.
• Insufficient Evidence: The prosecution failed to present enough evidence to prove guilt beyond a reasonable doubt for the specific crime charged.
• Incorrect Jury Instructions: The judge gave the jury flawed instructions about the law, which could have led them to an improper verdict.
• Prosecutorial Misconduct: The prosecutor engaged in improper behavior, such as making inflammatory statements during closing arguments or failing to turn over exculpatory evidence to the defense.
• Constitutional Violations: The defendant’s constitutional rights were violated, such as the right to a speedy trial, the right to confront witnesses, or the right against self-incrimination.
• Errors in Sentencing: The judge imposed a sentence that was not authorized by law or failed to follow proper sentencing procedures.
• Ineffective Assistance of Counsel: This claim argues that the trial attorney’s performance was so deficient that it deprived the defendant of a fair trial. This is often more difficult to raise on direct appeal and is frequently addressed in a separate proceeding called a writ of habeas corpus.

Identifying these errors requires a meticulous review of every page of the trial transcript, every motion filed, and every ruling made by the judge.

The Virginia Appellate Court System: Where Is an Appeal Heard?

Virginia has a tiered court system, and the path of an appeal depends on where the case originated.

• Appeals from General District Court or J&DR Court: Convictions in these lower courts are appealed to the Circuit Court. This type of appeal is unique because it results in a trial de novo, which means a completely new trial in the Circuit Court.
• Appeals from Circuit Court: For most felony and misdemeanor convictions, the appeal from a Circuit Court decision goes to the Court of Appeals of Virginia. This is the state’s intermediate appellate court, and where the vast majority of criminal appeals are decided.
• Appeals from the Court of Appeals: In certain circumstances, a decision by the Court of Appeals can be appealed to the Supreme Court of Virginia. The Supreme Court has discretion over which cases it hears and typically accepts only those that involve significant legal questions or matters of public importance.

What Is the Step-by-Step Process for a Virginia Criminal Appeal?

The appellate process is methodical and deadline-driven. Missing a single deadline can result in the forfeiture of your right to appeal.

Filing the Notice of Appeal. This is the first and most time-sensitive step. A written Notice of Appeal must be filed with the clerk of the trial court within 30 days of the final sentencing order. This 30-day deadline is absolute and jurisdictional. If it is missed, the right to a direct appeal is permanently lost.

Ordering Transcripts and Compiling the Record. The appellate court reviews the “record,” which is the official collection of all documents, motions, orders, and transcripts from the trial court case. The appellant is responsible for ordering the transcripts of all relevant hearings and ensuring the record is complete and accurate.

Filing the Petition for Appeal. This is the core document of the appeal. It is a detailed legal brief filed with the Court of Appeals that identifies the specific “assignments of error” and presents a persuasive legal argument for why the conviction should be overturned. This petition must cite relevant statutes, case law, and parts of the trial record to support its claims.

The Commonwealth’s Brief in Opposition. After the Petition for Appeal is filed, the Virginia Attorney General’s Office, representing the Commonwealth, will file a responsive brief arguing why the trial court’s decision was correct and should be upheld.

The Court’s Decision on the Petition. A panel of judges at the Court of Appeals will review the petition and the Commonwealth’s response. The court will then decide whether to grant or deny the appeal. If it is denied, the appellate process may end, though a further appeal to the Supreme Court of Virginia is sometimes possible.

Full Briefing. If the appeal is granted, a schedule is set for more extensive briefing. The appellant files an “Opening Brief,” the Commonwealth files a “Brief in Response,” and the appellant may file a final “Reply Brief.”

Oral Argument. In many cases, the court will schedule an oral argument. Here, the attorneys for both sides appear before a panel of three judges to present their arguments and answer the judges’ pointed questions about the case and the law.

The Final Decision. After briefing and oral argument, the judges will confer and issue a written opinion that details their decision and the legal reasoning behind it. The court can:

• Affirm the conviction, meaning the trial court’s decision stands.
• Reverse and Remand the case, meaning the conviction is overturned and the case is sent back for a new trial.
• Reverse and Dismiss the charges, which is a rare outcome where the conviction is overturned and the case is closed permanently.
• Vacate the sentence and remand for re-sentencing if there was an error in the original sentencing.

How Long Does a Criminal Appeal Take in Virginia?

The appellate process is not quick. From the filing of the Notice of Appeal to a final written opinion from the Court of Appeals, the process typically takes anywhere from nine months to well over a year. More complex cases or those that are appealed further to the Supreme Court of Virginia can take even longer. This lengthy timeline is due to the detailed work involved, including preparing transcripts, extensive legal research and writing, and the court’s own busy docket.

Can You Be Released on Bond Pending an Appeal?

After a conviction and sentencing, the defendant is no longer presumed innocent. As a result, securing release on an appeal bond is more difficult than getting bond before trial. A motion for an appeal bond must be filed with the trial court. The judge will consider several factors, including:

• The defendant’s risk of flight.
• Whether the defendant poses a danger to the community.
• Whether the appeal is frivolous or has a reasonable likelihood of success.

The court must be convinced that the appeal raises a substantial question of law or fact that is likely to result in a reversal or a new trial.

What Is the Difference Between an Appeal and Other Post-Conviction Options?

A direct appeal is just one avenue for challenging a conviction. It is important to know about other post-conviction remedies that address different types of legal issues.

• Direct Appeal: This is the primary method for challenging errors that are evident on the face of the trial record. It has a strict 30-day deadline from the sentencing order.
• Habeas Corpus: This is not an appeal but a separate civil lawsuit filed against the institution holding the petitioner (e.g., the prison warden). A writ of habeas corpus argues that the imprisonment is unlawful. It is often used to raise claims that rely on evidence outside the trial record, with the most common claim being ineffective assistance of trial counsel.
• Writ of Actual Innocence: This is a rare and specific remedy for individuals who have new, compelling evidence of their innocence that was not available at the time of their trial. This could include things like new DNA evidence, a recanted confession from another person, or other scientific evidence that proves innocence.

These different legal avenues have their own complex rules and deadlines, and are not mutually exclusive.

Why Is an Experienced Appellate Attorney Important?

Appellate law is a highly specialized field that requires a different skill set than trial law. A trial attorney’s strength lies in presenting evidence, examining witnesses, and persuading a jury. An appellate attorney’s work is scholarly and analytical, focused on:

• Meticulous Record Review: Scrutinizing thousands of pages of transcripts and court documents to identify preserved legal errors.
• In-Depth Legal Research: Delving into complex case law and statutes to build a strong legal argument.
• Persuasive Legal Writing: Crafting clear, compelling, and technically precise briefs that can convince a panel of experienced judges.
• Strategic Oral Argument: Engaging in a sophisticated legal dialogue with appellate judges during oral arguments.

A trial lawyer may have been too involved in the “battle” to see the “legal war.” A fresh perspective from a knowledgeable appellate attorney is often vital to identifying the strongest issues for an appeal and presenting them effectively to the higher court.

Contact Pack Law Group for a Consultation

If you or a loved one has been convicted of a crime in Virginia, the fight may not be over. The legal team at Pack Law Group is prepared to provide a thorough evaluation of your case to determine if meritorious grounds for an appeal exist. We will meticulously review the trial record and provide an honest assessment of your options. We are dedicated to protecting our clients’ rights and pursuing every available legal remedy. To schedule a consultation to discuss a potential criminal appeal, contact our firm today at 540-586-7225 or fill out our online contact form.