2.6 Commonwealth’s Pretrial Appeal

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

2.6 COMMONWEALTH'S PRETRIAL APPEAL

2.601 Pretrial Review by Court of Appeals. In any felony criminal prosecution, including a capital case, the Commonwealth may file a petition for appeal from certain pretrial rulings of a circuit court to the Court of Appeals. ³⁴⁹ The defendant may file a petition of cross appeal on any issues cognizable in that appeal. ³⁵⁰ Those appeals feature expedited appellate review, and the decision of the Court of Appeals is final for purposes of the pre-trial appeal. No further pretrial appeal lies to the Supreme Court. ³⁵¹ But that finality does not preclude a defendant, if he or she is convicted, from asking the Court of Appeals or Supreme Court on direct appeal to reconsider an issue that was the subject of the pretrial appeal. ³⁵²

The appeal must be taken before the jury is impaneled and sworn, or in a bench trial, before the court begins to hear evidence. ³⁵³

2.602 Limited Issues. The issues that can be appealed are quite limited. An appeal may be taken only from:

1.	An order of a circuit court dismissing a warrant, information, or indictment, or any count or charge thereof on the ground that a statute upon which it was based is unconstitutional; 354
2.	An order of a circuit court dismissing a warrant, information or indictment, or any count or charge thereof on the ground that (i) the defendant was deprived of a

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speedy trial in violation of the Sixth Amendment to the Constitution of the United States, article I, section 8 of the Constitution of Virginia, or Va. Code § 19.2-243; or (ii) the defendant would be twice placed in jeopardy in violation of the Fifth Amendment to the Constitution of the United States or article I, section 8 of the Constitution of Virginia; 355 or

3.

An order of a circuit court prohibiting the use of certain evidence at trial on the grounds that the evidence was obtained in violation of the Fourth, Fifth, or Sixth Amendment to the Constitution of the United States or article I, section 8, 10, or 11 of the Constitution of Virginia. That appeal may be taken only if the Commonwealth certifies that the evidence is essential to the prosecution. 356

2.603 Petitioning for Appeal.

A. Notice of Appeal. The appeal is initiated by filing a notice of appeal. It must be filed with the clerk of the circuit court within seven days after entry of the order from which the appeal is taken. Otherwise, the notice of appeal and the procedures for filing it are the same as for any other appeal to the Court of Appeals. ³⁵⁷

B. Automatic Suspension of Trial. Upon the timely filing of a notice of appeal, the order from which the appeal is taken and further trial proceedings, except bail hearings, are automatically suspended pending disposition of the appeal. ³⁵⁸

C. Cross Appeal. Although a defendant...