2.5 Capital Sentence Appeals

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

2.5 CAPITAL SENTENCE APPEALS

2.501 Automatic Review by Supreme Court. The Court of Appeals has no appellate jurisdiction over death sentence cases. ³³¹ The Virginia Code requires that a sentence of death be reviewed by the Supreme Court. ³³² This is true even if the defendant waives the appeal. ³³³ The proceeding in the circuit court must be transcribed expeditiously and filed immediately upon transcription. ³³⁴ Within 10 days after receipt of the transcript, the clerk of the circuit court must prepare the record and send it to the Supreme Court. ³³⁵ Upon receipt of the record, the Clerk of the Supreme Court notifies counsel for the defendant and the Attorney General of the court's receipt of the record. ³³⁶ At that point, the case stands matured as if an appeal had been awarded to review the conviction and the death sentence. ³³⁷

The clerk's notice of receipt of the record is deemed to be the certificate under Rule 5:23 that an appeal has been awarded, and the death sentence is stayed pending final disposition of the case by the court. ³³⁸ Within 30 days after the filing date (date of receipt of the record), counsel for the appellant must file his or her assignments of error with the Clerk of the

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Supreme Court. ³³⁹ At the same time, counsel must also file a designation of the parts of the record for inclusion in the appendix. ³⁴⁰

In assigning error with respect to the death sentence, it is sufficient to state that "the sentence was imposed under the influence of passion, prejudice, or other arbitrary factor or that the sentence is excessive or disproportionate to the penalty imposed in similar cases." ³⁴¹ Not more than 10 days after those assignments of error and designation are filed by the appellant, the Commonwealth may file a designation of any additional parts of the record for inclusion by the appellant in the...