VIRGINIA CRIMINAL APPEALS

Noting the Appeal

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The first step in a criminal appeal is filing a notice of appeal, a simple document stating your intent to appeal. You have 30 days from the final sentencing order (not the guilty verdict) to file this. Many people worry the clock starts at the guilty verdict, but it doesn’t—it starts at sentencing. When we file the notice, we’ll also order all the trial, sentencing, and motion hearing transcripts.

When Should I Hire an Appeals Attorney?

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​While you don’t need an appeals attorney before sentencing, it’s a good idea to get us involved as early as possible. If we’re brought in before trial, we can work with trial counsel to make sure all potential appellate issues are preserved. Even after trial, we can sometimes fix preservation issues with post-trial motions.

Can I Stay Out on Bond During the Appeal?

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It depends on your case. Judges are becoming more open to staying execution of sentences during the appeals process, meaning you wouldn’t serve jail time unless the appeal is lost. However, the decision is based on the specific facts and seriousness of your case.

What Happens After Filing the Notice of Appeal?

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After filing, there’s a waiting period while transcripts and trial records are prepared. Once the Court of Appeals receives the full record, they’ll notify us, and the official countdown for your appeal begins.

Is an Appeal a New Trial?

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No, an appeal isn’t a new trial. It’s based entirely on the trial record. We argue that legal mistakes were made that justify overturning the conviction or sending the case back for a new trial. Unlike trial court, the appeals process is primarily conducted through written legal briefs. After receiving the record, we have 40 days to file an opening brief outlining all the errors we’re challenging. 

What Happens After the Opening Brief Is Filed?

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The Attorney General’s Office takes over from the local prosecutor and has 30 days to file a response brief, arguing that no legal mistakes were made. We then have 14 days to file a reply brief, responding to their points. Reply briefs aren’t mandatory, but they’re often beneficial.

What Happens After All the Briefs Are Filed?

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The Court of Appeals may schedule oral arguments, though not every case gets one. Cases with more significant issues are more likely to get oral arguments. These hearings are different from trial. They focus on questions the judges want clarified, and each side gets 15 minutes to present their case. If oral arguments are granted, they typically take place near where the original trial occurred, and you can attend if you’re not incarcerated.

When Will I Get a Decision?

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After the briefs and any oral arguments, the Court of Appeals will issue a written decision. If you win, the conviction is reversed. If the convictions are affirmed, you can appeal to the Supreme Court of Virginia, which involves a separate process.

How Long Does the Process Take?

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The Court of Appeals process usually takes 6-12 months. If the conviction is affirmed and we appeal to the Supreme Court, that adds another 3-6 months, possibly longer.

What Are My Chances of Winning?

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It’s important to be upfront—appeals are challenging, and the vast majority of criminal convictions are upheld. However, that doesn’t mean success is impossible. Every case is different, and our experience allows us to spot critical errors that may have been overlooked. We understand how to craft strong, targeted arguments that give you the best possible chance of overturning your conviction. While the process is tough, our meticulous approach and thorough understanding of appellate law can make a real difference.

Can the Result Get Worse on Appeal?

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No, in almost all cases, the worst outcome is that the conviction is upheld, and you receive the same sentence as before.