13.4 Appeal from Court of Appeals to Supreme Court

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13.4 APPEAL FROM COURT OF APPEALS TO SUPREME COURT

13.401 Notice of Appeal. An appeal from the Court of Appeals to the Supreme Court of Virginia begins with the notice of appeal, which must be filed with the clerk of the Court of Appeals within 30 days after entry of the final judgment or order denying a rehearing in the Court of Appeals. ¹⁸⁵ The 30-day period for filing the notice of appeal is mandatory, although it may be extended for up to 30 days if at least two justices concur in a finding that an extension for papers to be filed is warranted by a showing of good cause sufficient to excuse the delay. ¹⁸⁶

13.402 Record on Appeal. The record on appeal from the Court of Appeals to the Supreme Court is the record as filed in the office of the clerk of the Court of Appeals, along with any other papers relating to the case that have been filed in the Court of Appeals. ¹⁸⁷ The clerk of the Court of Appeals must transmit all documents to the clerk of the Supreme Court within 10 days after the filing of the notice of appeal. ¹⁸⁸

13.403 Petition for Appeal. The petition for appeal from a decision of the Court of Appeals must be filed with the clerk of the Supreme Court within 30 days after entry of the final judgment or order denying a rehearing by the Court of Appeals. ¹⁸⁹ The petition for appeal, therefore, must be filed within the same time period prescribed for filing the notice of appeal. Seven

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copies of the petition must be filed together with the filing fee. ¹⁹⁰ There is a provision for an extension of time for filing the petition. ¹⁹¹ At the time the petition is filed, a copy must be mailed or delivered to opposing counsel. ¹⁹²

The petition for appeal must contain assignments of error, but only assignments of error relating to the same assignments of error that were presented to the Court of Appeals may be included. ¹⁹³ Furthermore, the error assigned must be that of the Court of Appeals, not the trial court. ¹⁹⁴ For example an assignment of error might be that the Court of Appeals erred in affirming the trial court's denial of the motion to suppress. Errors assigned in the petition must be placed under the specific, separate heading of "Assignments of Error." ¹⁹⁵ Failure to do so is cause for a show cause and dismissal only follows if the show cause is not obeyed. ¹⁹⁶ Rule 5:17(c)(1)(iii) provides that an assignment of error that does not address a finding or ruling of a "[t]ribunal from which an appeal is taken" is insufficient and that "[i]f the assignments of error are insufficient, the petition for appeal shall be dismissed." By prescribing dismissal of the appeal, this provision establishes that including sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives the Supreme Court of its active jurisdiction to consider the appeal. ¹⁹⁷

The petition for appeal also must include a certificate stating: (i) the names of all appellants and appellees; (ii) the names, addresses, telephone numbers of counsel for each party (fax numbers and email addresses should

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be included if available); (iii) the address and telephone number of any party not represented by counsel (fax numbers and email addresses should be included if available); (iv) whether counsel is court-appointed or privately retained; (v) whether counsel desires to state orally the reasons why the petition should be granted and, if so, whether in person or by conference telephone call; and (vi) that a copy of the petition has been mailed or delivered to opposing counsel and to parties not represented by counsel. ¹⁹⁸ For Anders briefs, Rule 5:17(h) requires compliance with Anders and Brown v. Warden of Virginia State Penitentiary. ¹⁹⁹

When it clearly appears that an appeal ought to be allowed without further delay, it may be allowed before the brief in opposition is filed. ²⁰⁰

13.404 Brief in Opposition. The Commonwealth may but is not required to file a brief in opposition within 21 days after receiving the peti-tion. ²⁰¹ Seven copies of the brief must be filed with the clerk of the Supreme Court and a copy sent to opposing counsel. ²⁰² The brief cannot exceed the longer of 25 pages or 4,375 words and must be signed by at least one counsel of record. ²⁰³

13.405 Assignments of Cross-Error. Under Rule 5:18(c) the brief in opposition may include assignments of cross-error and, in fact, must be assigned in the brief in opposition in order to be noticed by the Supreme Court. The cover of the brief must read, "Brief in Opposition and Assignment of Cross-Error." Rule 5:25 applies to limit the assignments of cross-error that will be heard on the appeal. Briefs in opposition containing assignments of cross-error must conform to the form, content, and maximum word requirements

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of Rule 5:18(b) and must be signed by at least one counsel of record. The Supreme Court will not grant any assignment of cross-error unless it first decides to grant some or all of the assignments of error contained in the appellant's petition for appeal. The appellee is not permitted to present oral argument to a writ panel. If the appellant withdraws the petition for appeal, the appeal will be dismissed without consideration of the cross-error.

13.406 Oral Argument and...