2.4 Mechanics of the Appeal

• Library: Appellate Practice - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

2.4 MECHANICS OF THE APPEAL

2.401 Appeal to the Virginia Court of Appeals.

A. Notice of Appeal. Caution: In "appeals of right," the appeal bond must be filed simultaneously with the notice of appeal. ¹⁵⁰ An appeal is initiated by filing a notice of appeal. It must be filed with the clerk of the trial court within 30 days after entry of the final judgment. ¹⁵¹ However, if a notice of appeal is filed after the court has announced its decision but before the final judgment order has been entered, such a notice will be deemed filed on entry of judgment. ¹⁵² The notice of appeal must state whether any transcript or statement of facts, testimony, and other incidents of the case will be filed. ¹⁵³ If the appellant plans to file a transcript of the proceedings in the

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trial court, the notice of appeal must certify that the transcript of the case has been ordered from the court reporter or is already in the appellant's possession or was previously filed in the proceedings. ¹⁵⁴ The rules contain a form to be followed in drafting notices of appeal to the Court of Appeals. ¹⁵⁵

Common Pitfalls : Two common (but easily avoidable) grounds for dismissal of appeal are: (1) Failure to include the appeal bond or irrevocable letter of credit simultaneously with the notice of appeal in "of right" appeals; (2) failure to include a statement in the notice of appeal regarding the transcript or a written statement of the proceedings and other incidents of trial.

There are special rules for appeals from the Virginia Workers' Compensation Commission. The notice of appeal is timely if filed within 30 days after entry of the final order of the Commission or "within 30 days after receipt of notice by priority mail with delivery confirmation or equivalent mailing option of the order appealed from." ¹⁵⁶ Also, the notice of appeal must state whether the appellant challenges the sufficiency of the evidence. ¹⁵⁷

Special rules also apply to a pretrial appeal by the Commonwealth and cross appeal by the defendant in a felony prosecution. ¹⁵⁸

Simultaneously with the filing of the notice of appeal, a copy of the notice must be mailed or delivered to opposing counsel and to the Clerk of the Court of Appeals. ¹⁵⁹ The appellant must include with the notice of appeal a certificate of service and a certificate setting forth the names and addresses of all appellants and appellees; the Virginia State Bar numbers, names, addresses, telephone numbers, fax numbers, and email addresses (if any) of counsel for each party; and the address, telephone number, fax number, and email address of any party not represented by counsel. ¹⁶⁰ In criminal cases,

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there must be a statement as to whether appellant's counsel is retained or appointed. ¹⁶¹

When an appeal is taken to the Court of Appeals, the appropriate filing fee must be sent to the Clerk of the Court of Appeals along with the copy of the notice of appeal. The check is to be made payable to the Clerk of the Court of Appeals. The clerk may file a notice of appeal even before the filing fee is received, but the rule provides for dismissal if the fee does not arrive within 10 days. ¹⁶²

The time limit prescribed for filing the notice of appeal in the trial court traditionally has been treated as mandatory and jurisdictional, but the rule provides that extensions may be granted upon "a showing of good cause sufficient to excuse the delay." ¹⁶³ Nevertheless, though the court has occasionally extended the time for filing a notice of appeal, such an extension is rare. Counsel should thus ensure a notice containing language about a transcript or written statement of facts to be filed (following the form ¹⁶⁴ in the rules) is filed within 30 days of a final judgment order. The time for filing a copy of the notice with the trial court or Workers' Compensation Commission and with the Clerk of the Court of Appeals can be extended. ¹⁶⁵ The Court of Appeals has on occasion extended the time within which the appellant could file the additional copy of the notice of appeal with that court. ¹⁶⁶ Moreover, section 8.01-677.1 of the Virginia Code provides that, if an appeal is filed in the wrong appellate court, the court in which it is filed will transfer the case to the proper appellate court if the party has perfected the appeal properly in the court of filing. However, as with appeals to the Supreme Court, the recognition of the appellate court's ability to extend notice-of-appeal deadlines should not be interpreted as a relaxation of the deadlines and

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content requirements of the notice. In reality, the court is likely to apply the exception rarely.

B. Suspension of Judgment. Execution of a judgment from which an appeal is sought generally may be suspended during the appellate process, provided the appeal is timely prosecuted and a suspending bond or irrevocable letter of credit is filed. ¹⁶⁷ But the court may refuse to suspend the execution of decrees for support and custody or judgments that deny, grant, modify, or dissolve an injunction. ¹⁶⁸

C. Bail Pending Appeal in a Criminal Case. If execution of a sentence in a criminal case is suspended, the defendant remains subject to the jurisdiction of the circuit court. ¹⁶⁹ The circuit court may release the defendant on bail. If the court denies bail or sets unfavorable terms of bail, those rulings are subject to appellate review. ¹⁷⁰ But after the expiration of 21 days from entry of final judgment and receipt of a defendant into the penitentiary system, "control of the destiny of the prisoner passes from the trial court to the Department of Corrections." ¹⁷¹ Therefore, if the defendant wants to be released on bail pending appeal, defense counsel must secure a suspension of execution under section 19.2-319 of the Virginia Code before these events occur.

When a trial court suspends the execution of a sentence pursuant to section 19.2-319, it is not required to extend the suspension throughout the appellate process. Rather, it need only suspend execution "for the purpose of preparing defendant's petition for appeal." ¹⁷² That is, the suspension is to enable one convicted of a crime "a fair opportunity to apply for a writ of error." ¹⁷³ "[T]he period of suspension is within the sound judicial discretion of the [circuit court] judge." ¹⁷⁴ But a trial court will usually suspend execution until the appeal has been decided.

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D. Record on Appeal to the Court of Appeals. The appellant is responsible for ensuring that an adequate record exists to enable the appellate courts to rule equitably on the assignments of error. ¹⁷⁵ When the mandatory rules for preparation of the record are not followed by the appellant, the appeal may be dismissed. ¹⁷⁶

Practice Pointer : Counsel must play an active role in ensuring a proper record. One thing counsel must realize is that it is his or her responsibility, not the court reporter's, to get any transcripts filed within the 60-day-after-judgment deadline. To do so requires foresight; ordering the transcript at the outset of an appeal is the best way to ensure the transcript is ready to be filed in time. Moreover, counsel should request of the trial court clerk the opportunity to review the records of pleadings, exhibits, orders, and other incidents of trial to ensure they are included in the record on appeal. Although clerks usually do an excellent job of compiling the record, important documents periodically are misplaced, especially in a file of any size.

The record on appeal is governed by Rules 5A:7 and 5A:8. The record on appeal from the Workers' Compensation Commission is governed by Rule 5A:11(c). Although the record is prepared by the clerk of the trial court or the Commission, it is the responsibility of counsel for the appellant to see that the transcript or written statement, if pertinent to the appeal, is prepared and made a part of the record.

A transcript becomes a part of the circuit court record when it is filed in the clerk's office of that court within 60 days after entry of final judgment. Unlike the rule in an appeal to the Supreme Court of Virginia, this time may be extended by a judge of the Court of Appeals upon written motion filed within 90 days after the entry of final judgment for good cause shown to excuse the delay. ¹⁷⁷ In the Supreme Court, Rule 5:11 does not permit an extension of time to file the transcript itself, but subsection (d) allows an

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additional 10 days (that is, up to 70 days after the entry of the judgment appealed from) to supplement, correct, or modify the transcript in the event of an inadvertent omission or clerical error. Rule 5:5(a) allows a single extension not to exceed 30 days for the filing of the notice of appeal and petitions for appeal, review, or rehearing, if at least two justices concur that good cause is shown sufficient to excuse the delay. Other motions for extensions of time are addressed in Rule 5A:3, and except for those covered in 5A:3(a), the trial court judge has the power to rule on these extensions. ¹⁷⁸ Counsel should never assume he or she will receive an extension unless and until it is granted and, if not granted by the time a transcript or other filing is due, counsel should ensure the filing is made.

While a transcript is not per se a jurisdictional requirement for an appeal, it is usually necessary in order for the appellate court to decide the issues properly. If the transcript is "indispensable to the determination of the case," the appeal will be dismissed if the transcript was not made a part of the record. ¹⁷⁹

The appellate court likewise will refuse to consider an issue on appeal if the appellant failed to designate for the record a document necessary for appellate review. ¹⁸⁰

Rule 5A:8(b) requires appellant's counsel to provide written notice of the filing of the transcript within 10 days of that filing or, if the transcript is filed before the filing of the notice of appeal, within 10 days after the notice of...