19.2-321.1 - Motion in the Court of Appeals for delayed appeal in criminal cases.
§ 19.2-321.1. Motion in the Court of Appeals for delayed appeal in criminalcases.
A. Filing and content of motion. - When, due to the error, neglect, or faultof counsel representing the appellant, or of the court reporter, or of thecircuit court or an officer or employee thereof, an appeal in a criminal casehas either (i) never been initiated; or (ii) been dismissed for failure toadhere to proper form, procedures, or time limits in the perfection of theappeal as required by law or by the Rules of the Supreme Court; then a motionfor leave to pursue a delayed appeal may be filed in the Court of Appealswithin six months after the appeal has been dismissed or the circuit courtjudgment sought to be appealed has become final, whichever is later. Suchmotion shall identify the circuit court and the style, date, and circuitcourt record number of the judgment sought to be appealed, and, if one wasassigned in a prior attempt to appeal the judgment, shall give the Court ofAppeals record number in that proceeding, and shall set forth the specificfacts establishing the said error, neglect, or fault. If the error, neglect,or fault is alleged to be that of an attorney representing the appellant, themotion shall be accompanied by the affidavit of the attorney whose error,neglect, or fault is alleged, verifying the specific facts alleged in themotion, and certifying that the appellant is not personally responsible, inwhole or in part, for the error, neglect, or fault causing loss of theoriginal opportunity for appeal.
B. Service, response, and disposition. - Such motion shall be served on theattorney for the Commonwealth or, if a petition for appeal was granted in theoriginal attempt to appeal, upon the Attorney General, in accordance with theRules of the Supreme Court. If the Commonwealth disputes the facts alleged inthe motion, or contends that those facts do not entitle the appellant to adelayed appeal under this section, the motion shall be denied withoutprejudice to the appellant's right to seek a delayed appeal by means ofpetition for a writ of habeas corpus. Otherwise, the Court of Appeals shall,if the motion meets the requirements of this section, grant appellant leaveto initiate or re-initiate pursuit of the appeal.
C. Time limits when motion granted. - If the motion is granted, allcomputations of time under the Rules of the Supreme Court shall run from thedate of the order of the Court of Appeals granting the motion, or if theappellant has been determined to be indigent, from the date of the order bythe circuit court appointing counsel to represent the appellant in thedelayed appeal, whichever is later.
D. Applicability. - The provisions of this section shall not apply to casesin which the appellant is responsible, in whole or in part, for the error,neglect, or fault causing loss of the original opportunity for appeal, norshall it apply in cases where the claim of error, neglect, or fault hasalready been alleged and rejected in a prior judicial proceeding.
(2005, c. 836.)