CODE OF VIRGINIA

MOTION IN THE COURT OF APPEALS FOR DELAYED APPEAL IN CRIMINAL CASES (§
19.2-321.1)

A. When, due to the error, neglect, or fault of counsel representing the
appellant, or of the court reporter, or of the circuit court or an officer or
employee thereof, an appeal in a criminal case has (i) never been initiated;
(ii) been dismissed for failure to adhere to proper form, procedures, or time
limits in the perfection of the appeal; or (iii) been denied or the conviction
has been affirmed, for failure to file or timely file the indispensable
transcript or written statement of facts as required by law or by the Rules of
the Supreme Court; then a motion for leave to pursue a delayed appeal may be
filed in the Court of Appeals within six months after the appeal has been
dismissed or denied, the conviction has been affirmed, or the circuit court
judgment sought to be appealed has become final, whichever is later. Such motion
shall identify the circuit court and the style, date, and circuit court record
number of the judgment sought to be appealed, and, if one was assigned in a
prior attempt to appeal the judgment, shall give the Court of Appeals record
number in that proceeding, and shall set forth the specific facts establishing
the said error, neglect, or fault. If the error, neglect, or fault is alleged to
be that of an attorney representing the appellant, the motion shall be
accompanied by the affidavit of the attorney whose error, neglect, or fault is
alleged, verifying the specific facts alleged in the motion, and certifying that
the appellant is not personally responsible, in whole or in part, for the error,
neglect, or fault causing loss of the original opportunity for appeal.

B. Such motion shall be served on the attorney for the Commonwealth or, if a
petition for appeal was granted in the original attempt to appeal, upon the
Attorney General, in accordance with the Rules of the Supreme Court. If the
Commonwealth disputes the facts alleged in the motion, or contends that those
facts do not entitle the appellant to a delayed appeal under this section, the
motion shall be denied without prejudice to the appellant’s right to seek
a delayed appeal by means of petition for a writ of habeas corpus. Otherwise,
the Court of Appeals shall, if the motion meets the requirements of this
section, grant appellant leave to initiate or re-initiate pursuit of the appeal.

C. If the motion is granted, all computations of time under the Rules of the
Supreme Court shall run from the date of the order of the Court of Appeals
granting the motion, or if the appellant has been determined to be indigent,
from the date of the order by the circuit court appointing counsel to represent
the appellant in the delayed appeal, whichever is later.

D. The provisions of this section shall not apply to cases in which the
appellant is responsible, in whole or in part, for the error, neglect, or fault
causing loss of the original opportunity for appeal, nor shall it apply in cases
where the claim of error, neglect, or fault has already been alleged and
rejected in a prior judicial proceeding.

HISTORY: 2005, c. 836; 2011, c. 278.