I Think the Judge Got it Wrong, What Can I Do?
Everyone makes mistakes, and that includes judges. When you believe the judge has made a wrong decision in your case, you can usually appeal and have the case re-examined by a new judge or even a panel of judges. However, there are strict deadlines and procedures that you must follow in order for your case to be reviewed on appeal. Failure to follow these procedures will usually mean that you are stuck with the verdict below. The procedures vary depending on the kind of appeal. This is an area where you certainly should speak with an attorney to make sure your appeal is properly made.
When Can I Appeal from the General District or Juvenile and Domestic Relations Courts
A case from General District Court, usually known as GDC, or Juvenile & Domestic Relations Court, or J&DR, can be appealed to the Circuit Court of the jurisdiction in which the court appealed from is sitting. GDC and J&DR are courts “not of record” in Virginia. They are so termed because there is no record made of court proceedings as the case progresses. What this means for defendants is that when they appeal to Circuit Court, they are entitled to an entirely fresh look at their case. The Circuit Court judge will host a new trial and the appeal is often said to give the defendant “a second bite at the apple.” The defendant is also usually entitled to a jury trial in the Circuit Court, something they are never allowed in the non-record courts.
However, there are some important concerns with an appeal from a non-record court to the Circuit Court. First, the defendant needs to make sure his appeal is timely filed. Defendants should keep in mind that the filing period is very short; the appeal absolutely must be filed within 10 days of the judge’s ruling in the case. Second, the defendant must know that the Commonwealth’s Attorney will get a second bite at the apple as well. It is very possible that the Circuit Court judge could impose a harsher sentence on the defendant then the one imposed in the lower court. It is critical that defendants considering an appeal speak with an attorney quickly before deciding whether to go ahead.
Appeals from the Circuit Court
Appeals from the Circuit Court are entirely different animals. Criminal case appeals from the Circuit Court will go to the Court of Appeals of Virginia, or CAV, unless they involve the death penalty. Appeals to the CAV are more focused on the procedures of the trial and less focused on the factual matter of guilt or innocence. The CAV judges will not host a new trial or receive new evidence, but will instead exam the transcripts and record from the Circuit Court trial. Appeals to the CAV are fraught with procedural traps. The appeal must be filed within 30 days after the Circuit Court verdict and each issue must usually have been timely raised in the Circuit Court before the Court of Appeals will re-examine them. Because appeals to the CAV usually involve complex procedural matters and issues of law, it is very important to speak with an attorney before proceeding.
You can also attempt a motion to reconsider. Under a motion to reconsider you ask the same judge who heard the original case to change their decision. A motion to reconsider can be filed up until the time someone is transferred from the local jail to a prison and becomes a custodian of the Bureau of Prisons. A motion to reconsider should usually involve some substantial information that was not known at the time of the trial or otherwise not presented to the judge. There is usually no downside to filing a motion to reconsider, but they can be difficult to win. That is because you are asking the same judge to change a ruling that they just made. However, under some circumstances it can be an effective effort to reduce a sentence.
