Bill Text: VA HB1545 | 2017 | Regular Session | Engrossed
Bill Title: Criminal cases; delayed appeals, assignments of errors dismissed in part.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2017-02-20 - Governor: Acts of Assembly Chapter text (CHAP0077) [HB1545 Detail]
Download: Virginia-2017-HB1545-Engrossed.html
Be it enacted by the General Assembly of Virginia:
1. That §§19.2-321.1 and 19.2-321.2 of the Code of Virginia are amended and reenacted as follows:
§19.2-321.1. Motion in the Court of Appeals for delayed appeal in criminal cases.
A. Filing and content of motion. When, due to the error,
neglect, or fault of counsel representing the appellant, or of the court
reporter, or of the circuit court or an officer or employee thereof, an appeal
[ in whole or in part ] in a criminal case has (i) never been initiated;
(ii) been dismissed for failure to adhere to proper form, procedures, or time
limits in the perfection of the appeal; [ or ] (iii) [ been
dismissed in part because some assignments of error contained in the petition
for appeal did not adhere to proper form or procedures; or (iii) (iv)
] been denied or the conviction has been affirmed, for failure to file or
timely file the indispensable transcript or written statement of facts as
required by law or by the Rules of the Supreme Court; then a motion for
leave to pursue a delayed appeal may be filed in the Court of Appeals within
six months after the appeal has been dismissed or denied, the conviction has
been affirmed, or the circuit court judgment sought to be appealed has become
final, whichever is later. Such motion shall identify the circuit court and the
style, date, and circuit court record number of the judgment sought to be
appealed, and, if one was assigned in a prior attempt to appeal the judgment,
shall give the Court of Appeals record number in that proceeding, and shall set
forth the specific facts establishing the said error, neglect, or fault. If the
error, neglect, or fault is alleged to be that of an attorney representing the
appellant, the motion shall be accompanied by the affidavit of the attorney
whose error, neglect, or fault is alleged, verifying the specific facts alleged
in the motion, and certifying that the appellant is not personally responsible,
in whole or in part, for the error, neglect, or fault causing loss of the
original opportunity for appeal.
B. Service, response, and disposition. Such motion shall be
served on the attorney for the Commonwealth or, if a petition for appeal was
granted in the original attempt to appeal, upon the Attorney General, in
accordance with the Rules of the Supreme Court. If the Commonwealth
disputes the facts alleged in the motion, or contends that those facts do not
entitle the appellant to a delayed appeal under this section, the motion shall
be denied without prejudice to the appellant's right to seek a delayed appeal
by means of petition for a writ of habeas corpus. Otherwise, the Court of
Appeals shall, if the motion meets the requirements of this section, grant
appellant leave to initiate or re-initiate pursuit of the appeal.
C. Time limits when motion granted. If the motion is granted,
all computations of time under the Rules of the Supreme Court shall run
from the date of the order of the Court of Appeals granting the motion, or if
the appellant has been determined to be indigent, from the date of the order by
the circuit court appointing counsel to represent the appellant in the delayed
appeal, whichever is later.
D. Applicability. The provisions of this section shall not apply to cases in which the appellant is responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal, nor shall it apply in cases where the claim of error, neglect, or fault has already been alleged and rejected in a prior judicial proceeding.
§19.2-321.2. Motion in the Supreme Court for delayed appeal in criminal cases.
A. Filing and content of motion. When, due to the error,
neglect, or fault of counsel representing the appellant, or of the court
reporter, or of the Court of Appeals or the circuit court or an officer or
employee of either, an appeal from the Court of Appeals to the Supreme Court in
a criminal case has (i) never been initiated; (ii) been dismissed for failure
to adhere to proper form, procedures, or time limits in the perfection of the
appeal; (iii) been dismissed in part because [ some at
least one ] assignments of error contained in the petition for appeal
did not adhere to proper form or procedures; or (iii) (iv)
been denied or the conviction has been affirmed, for failure to file or timely
file the indispensable transcript or written statement of facts as required by
law or by the Rules of the Supreme Court; then a motion for leave to
pursue a delayed appeal may be filed in the Supreme Court within six months
after the appeal has been dismissed or denied, the conviction has been
affirmed, or the Court of Appeals judgment sought to be appealed has become
final, whichever is later. Such motion shall identify by the style, date, and
Court of Appeals record number of the judgment sought to be appealed, and, if
one was assigned in a prior attempt to appeal the judgment to the Supreme
Court, shall give the record number assigned in the Supreme Court in that
proceeding, and shall set forth the specific facts establishing the said error,
neglect, or fault. If the error, neglect, or fault is alleged to be that of an
attorney representing the appellant, the motion shall be accompanied by the
affidavit of the attorney whose error, neglect, or fault is alleged, verifying
the specific facts alleged in the motion, and certifying that the appellant is
not personally responsible, in whole or in part, for the error, neglect, or
fault causing loss of the original opportunity for appeal.
B. Service, response, and disposition. Such motion shall be served on the attorney for the Commonwealth or, if a petition for appeal was granted in the Court of Appeals or in the Supreme Court in the original attempt to appeal, upon the Attorney General, in accordance with Rule 5:4 of the Supreme Court. If the Commonwealth disputes the facts alleged in the motion, or contends that those facts do not entitle the appellant to a delayed appeal under this section, the motion shall be denied without prejudice to the appellant's right to seek a delayed appeal by means of petition for a writ of habeas corpus. Otherwise, the Supreme Court shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal from the Court of Appeals to the Supreme Court.
C. Time limits when motion granted. If the motion is granted,
all computations of time under the Rules of the Supreme Court shall run
from the date of the order of the Supreme Court granting the motion, or if the
appellant has been determined to be indigent, from the date of the order by the
circuit court appointing counsel to represent the appellant in the delayed
appeal, whichever is later.
D. Applicability. The provisions of this section shall not apply to cases in which the appellant is responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal, nor shall it apply in cases where the claim of error, neglect, or fault has already been alleged and rejected in a prior judicial proceeding, nor shall it apply in cases in which a sentence of death has been imposed.
