Virginia Code Sections 19.2-321.1 (to the Court of Appeals of Virginia) and
19.2-321.2 (to the Supreme Court of Virginia) provide a procedure for reinstating
the right to appeal in certain types of situations. Sometimes this procedure is
called a request for a "Delayed Appeal," and sometimes it is referred to as a
request for a "Belated Appeal." Here, the procedure will be referred to as a
Delayed Appeal, as termed in these actual statutes.
To be within the time limits to qualify for what is called a Delayed Appeal, the
Motion must be filed within six months of when the previous appeal was
dismissed. If no previous appeal was filed, the Motion must be filed within six
months after the lower court's entry of its final order.
To qualify for a Delayed Appeal, the previous dismissal must have been for
procedural reasons or for a missed deadline, and not have been any fault of the
defendant.
To qualify for a Delayed Appeal, there is no requirement to show (or even assert)
that there were meritorious issues which could have been raised in the first
appeal.
If the first appeal was considered on the merits by the appellate court, a Delayed
Appeal is not allowed. This is usually indicated by the appellate Court's final
order using the word "refused" or "refuses," rather than "dismissed" or
"dismisses."
Because the Delayed Appeal procedure is fairly straightforward and the
qualifications for it are objective, the appellate Courts are able to address the
Motion relatively quickly.
If the Motion is granted, the entire appellate process begins over again. In the
resulting new appeal, the new appellate attorney can raise the issues which were
raised in the first appeal and also issues that were not raised in the first appeal.
However, as in any direct appeal, the appellate Courts will only consider issues to
which a timely objection was raised at trial. (There are very limited and narrow
exceptions to this "Contemporaneous Objection" Rule.)
For more information about the direct appeal process, see the "Felony Appeals"
page on this website.
19.2-321.2 (to the Supreme Court of Virginia) provide a procedure for reinstating
the right to appeal in certain types of situations. Sometimes this procedure is
called a request for a "Delayed Appeal," and sometimes it is referred to as a
request for a "Belated Appeal." Here, the procedure will be referred to as a
Delayed Appeal, as termed in these actual statutes.
To be within the time limits to qualify for what is called a Delayed Appeal, the
Motion must be filed within six months of when the previous appeal was
dismissed. If no previous appeal was filed, the Motion must be filed within six
months after the lower court's entry of its final order.
To qualify for a Delayed Appeal, the previous dismissal must have been for
procedural reasons or for a missed deadline, and not have been any fault of the
defendant.
To qualify for a Delayed Appeal, there is no requirement to show (or even assert)
that there were meritorious issues which could have been raised in the first
appeal.
If the first appeal was considered on the merits by the appellate court, a Delayed
Appeal is not allowed. This is usually indicated by the appellate Court's final
order using the word "refused" or "refuses," rather than "dismissed" or
"dismisses."
Because the Delayed Appeal procedure is fairly straightforward and the
qualifications for it are objective, the appellate Courts are able to address the
Motion relatively quickly.
If the Motion is granted, the entire appellate process begins over again. In the
resulting new appeal, the new appellate attorney can raise the issues which were
raised in the first appeal and also issues that were not raised in the first appeal.
However, as in any direct appeal, the appellate Courts will only consider issues to
which a timely objection was raised at trial. (There are very limited and narrow
exceptions to this "Contemporaneous Objection" Rule.)
For more information about the direct appeal process, see the "Felony Appeals"
page on this website.
Andrew G. Wiggin, P.C.
Delayed Appeals
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Disclaimer: The information provided on this website is not legal advice. Accessing the information on
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the legal
services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested persons
may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew G.
Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation in
federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the legal
services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested persons
may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew G.
Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation in
federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.