Can I Overturn My Conviction in Virginia?

A person who has been convicted of committing a crime in Virginia may wonder what options are available to overturn the conviction. There are three basic options: post-trial motions, appeals, or a writ of habeas corpus.

Post-Trial Motions

When a jury returns a guilty verdict, the defendant may file a Motion to Set Aside the Verdict. The request may be made either because the evidence submitted at trial was not sufficient to support the verdict or if the judge made mistakes such that justice requires setting aside the decision. For either argument, the motion must be filed within 21 days after the verdict is entered. Virginia Supreme Court Rules, Rule 3:15(b).

The judge must enter a judgment of not guilty if he finds that the evidence was insufficient to sustain the conviction. However, if the verdict is set aside due to mistakes made during the trial, a new trial may be held. If a Motion to Set Aside the Verdict is denied, the defendant may request review from a higher court via an appeal.

Notice of Intention to Appeal

The way to ask a higher court to review the trial court proceedings is to file a Notice of Appeal. In capital cases, the appeal goes directly to the Supreme Court of Virginia. Non-death penalty cases are first heard by the Court of Appeals of Virginia. An appeal is not a new trial. It is a review of the lower court proceedings to determine whether constitutional errors or other legal violations occurred that make the verdict unjust.

The first step for a person who has been convicted is to file a Notice of Intention to Appeal with the clerk of the trial court within 30 days after the judge enters the sentence. The clerk of the court then compiles the record of the trial court proceeding and forwards it to the Court of Appeals. This process can take a couple of months, but gives the appealing party, or appellant, time to begin working on his petition.

The arguments are listed in the Petition for Appeal, which is due 40 days after the Court of Appeals receives the case file. This document is only for listing mistakes made by the trial court; a person cannot raise any new arguments or introduce new evidence on appeal. The appellant must list every argument that he wants to be able to argue at the hearing or at a subsequent appeal. Once the Petition for Appeal is filed, the state is allowed to file its response, called a Brief in Opposition. This document explains why the Commonwealth Attorney believes that the judge did not make mistakes in presiding over the trial and why the verdict should stand.

After both briefs are filed, the appellant's attorney is allowed to appear before a three-judge panel to argue why the appeal should be considered. The Commonwealth's Attorney does not attend this hearing. If at least one of the three judges believes that the trial court judge may have committed an error, the judge can grant the appeal.

Granting the appeal means that the appellant's attorney files another brief, stating when the decision should be reversed. This is usually done a few months after the appeal is granted. Again, only arguments in the Petition for Appeal will be considered. The Attorney General steps in as the prosecutor and drafts a response to the brief. The appellant may file a short reply brief to address new arguments only. Then, the case goes to oral argument before a three-judge panel.

Oral argument is a summary of the arguments presented in the briefs. Each party typically only has 15 minutes, and the judges may interrupt with questions, so the brief has to fully lay out the arguments. If the appellant is incarcerated, he will not be brought to the appeal. The Court does not announce the decision immediately. Instead, it takes the matter under consideration and issues a written opinion later. The Court does not have a set deadline for filing the opinion.

The Court has three options. Code of Virginia, Section 19.2-324. The judgement could be reversed and remanded to the trial court for a new trial. The Court of Appeals could also reverse the conviction and dismiss the case, as if the defendant were found not guilty. The judgment could also be affirmed, leaving the appellant to decide whether to appeal to the Supreme Court or file a writ of habeas corpus. In some cases, the losing party may also file a Petition for Rehearing, asking the court for a second oral argument.

Writ of Habeas Corpus

The final step for many is to file a writ of habeas corpus, alleging that the person's incarceration is unlawful, and asking the judge to order that he be set free. The writ may allege either state or federal law violations.

A state-based habeas petition may be filed with the Circuit Court or with the Supreme Court of Virginia. The court may, but is not required to, schedule an evidentiary hearing after reviewing the Petition and the state's response. If the case is filed with the Circuit Court and denied, it may be appealed using the above procedures.

A writ of habeas corpus does not have to be based on mistakes during the trial. The prisoner may object to the conditions of his imprisonment. However, the federal courts typically will not hear arguments not presented to the state courts.

If a federal habeas request is denied, the prisoner may appeal to the United States Circuit Court of Appeals then may petition the Supreme Court of the United States for review. It may also be possible to file more than one writ if violations occur while the person is imprisoned.

For individuals that would like more information, the state Attorney General provides a detailed guide to the appellate process that may be helpful in non-capital cases. The guide discusses both direct appeals and petitions for habeas corpus.