13.6 Commonwealth Appeals

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

13.6 COMMONWEALTH APPEALS

13.601 In General. By virtue of an amendment to Article IV, Section 1 of the Virginia Constitution, the Commonwealth has a limited right of appeal in criminal cases when authorized by the legislature. Pursuant to

[Page 830]

the constitutional grant of authority, the legislature has authorized the Commonwealth to appeal: (i) from a circuit court order in a felony case dismissing a warrant, information, or indictment, or any count or charge thereof, on the ground that the statute or local ordinance upon which it is based is unconstitutional; or (ii) from an order prohibiting the use of certain evidence at trial on the ground that the evidence was obtained in violation of the Fourth, Fifth, or Sixth Amendment to the United States Constitution or Article I, Section 8, 10, or 11 of the Virginia Constitution prohibiting illegal searches and seizures and protecting rights against self-incrimination. ²⁴⁷ Section 19.2-398 also permits the Commonwealth to appeal pretrial orders containing findings that the defendant was denied a speedy trial under the United States or Virginia Constitutions or section 19.2-243 or findings that the defendant was denied double jeopardy protections under the United States or Virginia Constitutions. ²⁴⁸ The statute also permits the Commonwealth to appeal in a felony case after conviction where the sentence imposed by the circuit court is contrary to mandatory sentencing or restitution terms required by statute ²⁴⁹ or from an order of release on bail if the defendant is charged with a felony. ²⁵⁰

The Commonwealth must certify that the appeal is not taken for delay and, in the case of an appeal from a motion to suppress, that the prohibited evidence constitutes substantial proof of a material fact. ²⁵¹ The prosecutor's certification is not reviewable on appeal. ²⁵²

The statutory right of appeal must be strictly construed and limited in application to cases falling clearly within its language. ²⁵³ The Court of Appeals has construed the statute as being limited to constitutional violations resulting from an illegal search and seizure or an infringement of the accused's rights against self-incrimination and has refused to entertain an appeal of a suppression order relating to eyewitness testimony even though the trial court based its suppression ruling on the Fifth Amendment and

[Page 831]

Article I, Section 11 of the Virginia Constitution. ²⁵⁴ The Court of Appeals has also ruled that the Commonwealth may not appeal a trial court's suppression order that is based on statutory rather than constitutional grounds, even though that ruling may have been erroneous and involved an illegal search and seizure. ²⁵⁵

13.602 Procedure. All Commonwealth appeals, including those in capital cases, are to the Court of Appeals. ²⁵⁶ To suspend the order of the trial court from which the appeal is taken, the Commonwealth must file a notice of appeal with the trial court within seven days of entry of the court's order. ²⁵⁷ The appeal must be taken before the jury is impaneled and sworn or, in a bench trial, before the court begins to hear evidence or the first witness is sworn, whichever occurs first. ²⁵⁸ The requirements of Part 5A of the Rules of the Virginia Supreme Court apply to the notice of appeal, the petition for appeal, and the record on appeal. ²⁵⁹ Once a timely notice of appeal is filed, further proceedings are suspended in the trial court pending disposition of the appeal. ²⁶⁰ The time limitations set out in Virginia code section 19.2-405 are strictly construed against the Commonwealth, and...