Appeals Flashcards
what are the two appellate courts in VA?
1) Court of Appeals of Virginia - intermediate appellate court
2)Supreme Court of Virginia - highest appellate court
summary of the biggest changes that have been made for purposes of the bar exam?
appeals in both criminal and most civil cases are appeals by right (mostly) and not by petition to the Virginia Court of Appeals. Also virtually all appeals (inc civil cases) go first to the CoA by right; the losing party may then petition the Virginia Supreme Court to review the Coa decision if they lose at coa level
(before most civil appeals went directly to the SC by petition)
the old way?
1)file a notice of appeal with the CC
2)file a petition for appeal to the Virginia Supreme Court
NOWWWWWW?
1) file a notice of appeal with the CC
2)file an appeal brief in the Virginia Court of Appeals
under the new way what is the original jurisdiction for CoA?
writs of mandamus, prohibition, and habeas corpus in any case over which the court of appeals would have appellate jurisdiction; and writs of actual innocence based on non-biological evidence
when must the notice of appeal be filed?
filed within 30 days after entry of the final judgment or appealable order
how is the notice of appeal filed?
1)file in the clerk’s office of trial court, tribunal, or commission from which appeal is taken
2)copy of notice of appeal is sent to all opposing counsel, parties not represented by counsel, the Clerk of the Court of Appeals, and (in criminal cases) the Attorney General
what is the filing fee for the notice of appeal?
notice must be accompanied by a $50 filing fee
when is a notice of appeal not required?
in most interlocutory appeals
what are the special rules in criminal appeals?
now that the Attorney’s General’s Office will be involved in criminal appeals from the outset of the appeal, the copy of the notice must be served on the Office of the Attorney General.
within 14 days of the filing of the notice of the appeal, the AG will file a notice of appearance and serve the notice of appearance on counsel for the appellant
must a party file an appeal bond?
a party filing a notice of appeal must simultaneously file in the trial court, etc. an appeal bond if required, and then give notice in writing to counsel for appellee (not required in criminal appeals, $500 bond or irrevocable letter of credit req in civil appeals)
new rule for written statements?
written statements of fact are now due 60 days (not 55 days) after entry of the final or appealable order
what happens if the appeal is filed in the wrong court?
must transfer the matter to correct appellate court, it is not dismissed or a fatal error
what are the time deadlines?
when a time period is measured from the date of entry of the order of the trial judge in cc, the clock is not stopped by filing of any post-trial motions, inc a notice of appeal
to preserve an issue for appeal, what must the party do?
promptly object to the error and stated the legal grounds for the objection on the record. failure to do so will generally result in the issue being waived
under what circumstances can an error be considered on appeal even without proper objection (3)?
-if issue goes to jurisdiction of the trial court
-for good cause shown, or
-to attain the ends of justice
appellate courts are very reluctant to grant the “good cause” or “ends of justice” exceptions
what is a proffer?
when evidence is excluded, the party offering the evidence must get the excluded evidence into the record in order to preserve the issue for appeal
are assignments of error required?
both appellate courts require, in any petition for appeal and in any opening brief, that the appealing party include assignments of error, specifying what errors it is claiming that the trial court made.
each error must include an exact reference to the page of the transcript, written statements of facts, or other document where it shows the error has been preserved
what is the standard of review for factual determinations?
appellate court will give great deference to the trial judge’s
what is the standard of review for an issue of law?
appellate court gives no deference and looks at the issue de novo
