Recently the news has been full of criminal defendants having their cases overturned because of newly discovered evidence and procedural defects in their cases. The Constitution and state and federal law contain many remedies for a criminal defendant to attack a conviction after a trial. Below we explain three (3) post-conviction remedies for a Virginia conviction.
If you have any questions about appeal rights in Virginia, or would like to discuss the possibility of filing one of these post-conviction writs, please contact the criminal attorneys at Winslow & McCurry at 804.423.1382.
1. A Direct Appeal in Virginia
The first and most obvious of those avenues is the direct appeal. In Virginia, a criminal case can be appealed to the Virginia Court of Appeals and then the Virginia Supreme Court. These direct appeals must be filed with the Court of Appeals within thirty days of sentencing in the Circuit Court. The appeal is done “on the record”, which means the Court does not hear a new trial, but reads the record of the trial done in Circuit Court. This appeal process is by petition, and does not require the Court to hear the appeal. If the Court of Appeals denies the petition or the appeal, the defendant can petition the Supreme Court of Virginia for an appeal. These appeals can be based on any error that was alleged to have occurred during the trial. In most cases, the attorney for the defendant must object to the error during the trial.
2. A Petition For A Writ of Habeas Corpus
If a direct appeal is not successful or is not taken, a defendant who is still in custody can petition for a writ of habeas corpus. This petition alleges that the continued detention of the defendant is wrongful and the court should require his release. Writs of Habeas Corpus are governed by state and federal law. Va. Code § 8.01-654. These petitions can only be based on constitutional violations that were not argued on direct appeal. The typical petition is based on the ineffective assistance of counsel. Petitions can be filed in both state and federal court; however a prison must exhaust his state remedies before filing in federal court.
3. A Petition Based On Newly Discovered Evidence
Virginia law also provides for a petition based on newly discovered evidence. These petitions are governed by Va. Code §§ 19.2-327.2 and 19.2-327.10. These can be based on biological or non-biological evidence. These are called “writs of actual innocence”. In the case of biological evidence, the Supreme Court has the ability to issue these writs and vacate any conviction. In the case of non-biological evidence, the Court of Appeals has the ability to issue the writs.
