13.5 Appeal from District Court to Circuit Court

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

13.5 APPEAL FROM DISTRICT COURT TO CIRCUIT COURT

13.501 In General. A statutory right to appeal is granted to any person who has been convicted of or pled guilty to a non-felonious offense in a district court and from any order or judgment of a district court forfeiting any recognizance or revoking any suspension of sentence. ²²⁷ This right of appeal is actually a statutory grant of a new trial since the Virginia Code provides that the appeal from the district court must be heard de novo in the circuit court. ²²⁸ The payment of fines or other submissions to the court's judgment is not a waiver of the right to appeal. ²²⁹

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The right to appeal to the circuit court de novo fulfills the constitutional requirement of a jury trial in criminal cases. ²³⁰

Because the appeal annuls the judgment of the district court, the district court's judgment may not be introduced in the circuit court. ²³¹ In fact, it is reversible error to mention the judgment of the district court. ²³² Moreover, the judge who presided over the lower court proceedings may not testify before the circuit court about anything that transpired below. ²³³

The annulment of the proceedings below, however, is not absolute. Statements and admissions made by the defendant while testifying in the district court are admissible in evidence at the trial in the circuit court. Admitting these statements does not violate the Fifth Amendment right against self-incrimination. ²³⁴ Statements made by a defendant, however, are admissible only when the defendant takes the stand on his or her own behalf and not when the defendant testifies for another. ²³⁵

The Virginia Supreme Court has held that Virginia's system of allowing misdemeanants an appeal of right to the circuit court while not granting an appeal of right to felons convicted in the circuit court does not violate equal protection guarantees. ²³⁶

13.502 Procedure. Within 10 days from the date of the conviction in the district court, the defendant who wishes to appeal to the circuit court must notify the clerk of the district court in writing of his or her intention to appeal. ²³⁷ Because the appeal to the circuit court is not a true appeal, there is

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no need to make assignments of errors. The district courts are not courts of record, so assignments of error could not be supported from the record, as is required in an appeal to the Court of Appeals or the Supreme Court. Formal pleadings are unnecessary. The defendant has a right to a jury trial in circuit court as though he or she had been indicted for the offense. ²³⁸ The commonwealth's attorney also has the right to a jury trial and may insist on one in a de novo appeal. ²³⁹ If the general district court warrant is defective in some respect, the circuit court can either amend it or issue a new warrant if the defect is serious. ²⁴⁰

After the defendant files the notice of appeal to the circuit court within the 10-day period, he or she also may file within 60 days to reopen the case in the district court. ²⁴¹ If the district court amends its judgment within the 60-day period and before the case is heard in circuit court, the circuit court, upon the defendant's motion to withdraw the appeal, must grant the motion to withdraw and return the case to the district court. ²⁴²

A defendant who wishes to withdraw the appeal may do so any time before...