19.2-321.2 - Motion in the Supreme Court for delayed appeal in criminal cases.
§ 19.2-321.2. Motion in the Supreme Court 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 theCourt of Appeals or the circuit court or an officer or employee of either, anappeal from the Court of Appeals to the Supreme Court in a criminal case haseither (i) never been initiated; or (ii) been dismissed for failure to adhereto proper form, procedures, or time limits in the perfection of the appeal asrequired by law or by the Rules of the Supreme Court; then a motion for leaveto pursue a delayed appeal may be filed in the Supreme Court within sixmonths after the appeal has been dismissed or the Court of Appeals judgmentsought to be appealed has become final, whichever is later. Such motion shallidentify by the style, date, and Court of Appeals record number of thejudgment sought to be appealed, and, if one was assigned in a prior attemptto appeal the judgment to the Supreme Court, shall give the record numberassigned in the Supreme Court in that proceeding, and shall set forth thespecific facts establishing the said error, neglect, or fault. If the error,neglect, or fault is alleged to be that of an attorney representing theappellant, the motion shall be accompanied by the affidavit of the attorneywhose error, neglect, or fault is alleged, verifying the specific factsalleged in the motion, and certifying that the appellant is not personallyresponsible, in whole or in part, for the error, neglect, or fault causingloss of the original 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 theCourt of Appeals or in the Supreme Court in the original attempt to appeal,upon the Attorney General, in accordance with Rule 5:4 of the Supreme Court.If the Commonwealth disputes the facts alleged in the motion, or contendsthat those facts do not entitle the appellant to a delayed appeal under thissection, the motion shall be denied without prejudice to the appellant'sright to seek a delayed appeal by means of petition for a writ of habeascorpus. Otherwise, the Supreme Court shall, if the motion meets therequirements of this section, grant appellant leave to initiate orre-initiate pursuit of the appeal from the Court of Appeals to the SupremeCourt.
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 Supreme Court 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, nor shallit apply in cases in which a sentence of death has been imposed.
(2005, c. 836.)