30 March 2017

Appealing a Bond in Virginia

It was pointed out to me that I didn't discuss the process for appealing bonds in Virginia. Admittedly, I've never seen one appealed above a circuit court, but there is a process and here it is as best I can discern by delving into the dark recesses of the Virginia statutes and rules of court.

Everything starts with the magistrate. A magistrate (limited judicial officer who is the first to see arrestees) can set a bond except when the case falls under the statutory presumption against bond, 19.2-120, the arrestee is an illegal alien with certain charges, 19.2-120.1, or a judge set a no bond condition on a capias (that's a bench warrant for those of you from States uncouth enough to use English in their courtrooms) 19.2-130.1.  Shortly after her appearance before the magistrate, the defendant's next hearing is in front of a judge. This usually is one of district court judges (general or juvenile and domestic), but it can be the circuit court judge; it all depends on how she was charged and what the charge is.

If the defendant appears before a district court, she can ask for a bond hearing and it must be set within 3 days; so can the prosecutor if he believes the bond inadequate 19.2-158.  That judge can set a bond or alter an existing bond (increase, decrease, change conditions). If either side is unhappy about the result of that bond hearing they can appeal to the next higher court (the Circuit Court in this case). If the district court judge sets a bond in contravention of the statutes which set a presumption against bond, 19.2-120 and 19.2-120.1, and the prosecution appeals then the district judge must stay the execution of his bond order until an expedited appeal is done or for 5 days, whichever is shorter. 19.2-124. An appeal to the circuit court generally just involves going to the district court clerk's office, filling out a little paperwork, and setting a date.

When the bond issue gets to the circuit court, either on appeal from a district court or dealing with its own case (the same 3 day window as above applies), it sets a bond which it considers appropriate. Then comes the interesting part. Both sides have the ability to appeal to the Court of Appeals and thereafter to the Virginia Supreme Court (arguably).

So, your circuit court judge, the Honorable Euripides Titus Hartfordshire the Fourth, believes that everyone has a constitutional right to a bond. He's wrong, of course, but he's a Hartfordshire of the Snob Knob Hartfordshires and you aren't. You're not going to win that argument in his court and all the defense attorneys know it. So you're constantly in front of him arguing things like "No, the Pitcairn Axe Murderer should not get a bond, Your Honor." He sets one anyway and you, poor, piteous, humble prosecutor are faced with the prospect that if the PAM can get his biker buddies to pony up enough money and find a gullible enough bondsman he can get out on a $25,000 bond and ride off into the sunset never to be seen again.

What do you do? Well under 19.2-124(A) a defense attorney is entitled to appeal the bond all the way up to the Virginia Supreme Court and 19.2-124(B) gives you the right to do anything a defense attorney can. As well 19.2-398(B) tells you that this is one of the few things a prosecutor can appeal. So, you decide to go for it. How do you do it?

What else do the statutes tell us about this? First, under 19.2-124(D) no one has to pay any fee for an appeal of bond. Second, there is a curious oversight in the 19.2-124(C). For appeals at all levels, it allows, but does not require, the judge who set the bond to stay the execution of his order as long as reasonable when there is no presumption against bond. However, there is no instruction as to what should happen for those crimes wherein there is a presumption against bond when there is an appeal to the appellate courts - there is only instruction for an appeal from a district court to the circuit court. Consequently, while there is an implication that bond orders pertaining to these types of crimes should be stayed pending an appeal, there is neither a statutory requirement nor a statutory authorization that they be stayed. At best, you may be able to get the circuit court judge to stay his order based upon his inherit ability to do so. At worst, because the statute lays out one circumstance under which the bond may be stayed and one circumstance under which it must be stayed, the statute forbids a judge from staying his bond ruling under any other circumstances (inclusio unius est exclusio alterius) and a bond on charges against the presumption which is not being appealed from a district court to the circuit cannot be stayed. Period. If anybody reading this knows someone in the General Assembly you might want to mention to them that it'd be a good idea to fix this. Third, I can't find anything else in the statutes which applies.


Next, we look to the Rules of the Virginia Supreme Court - specifically 5A (Court of Appeals). Here, the appellate courts pull a switch which doesn't seem to mesh with the statutes. The General Assembly through 19.2-124 refers to "bond appeals" and in 19.2-398(B) only authorizes prosecutors to "petition for appeal" in bond matters. Rule 5A:2 changes this to a "Motion for Review of Pre-trial Bail Orders in Criminal Cases" in the Court of Appeals (the Virginia Supreme Court does not address this in 5:4, its motions rule). This is important for three reasons. First, a prosecutor who follows the Rule will be in violation of the statute. Second, the appealed order of the circuit court is not suspended as it would be upon the filing of a notice of appeal.  19.2-400Third, the prosecutor loses the waiver of speedy trial which would normally come from a defense action that causes a delay in the trial.  19.2-409.

Honestly, I don't have a lot of issues with the third problem as long as the Court of Appeals rules expeditiously. Bond really should be one of those collateral matters decided in parallel with substantive trial proceedings. The second problem is probably the worst as a practical matter. As noted earlier, without this suspension it is quite possible that the way the statutes are written a defendant charged with a crime that carries a presumption against bond will not have his bond stayed/suspended while the motion is pending and (assuming the prosecution is right) could get out before an appellate court decision and flee or harm others. The first problem is also troubling. Prosecutorial appeals are entirely a creation of the General Assembly through its statutes. If, as it will have to, the prosecution follows the procedure laid out in Rule 5A:2 it is acting outside its granted ability to appeal and the defense will have a solid argument for dismissal out of hand.

General Motion Rules: Laying all that aside for a moment, let's look at what Rule 5A:2 requires. Any party seeking review must file an original motion and three copies to the Court of Appeals' clerk. It would probably behoove the moving party to plead with specificity here because unless the Court agrees to oral argument there is none. Your motion must state (1) you told the other party that you intended to file the motion, and (2) whether opposing counsel agrees with your motion or intends to file a reply. If opposing counsel chooses to reply he has 10 days, but the Court of Appeals does not have to wait for his reply before it rules on the motion.

Rules Specific to Bond Review Motions:  The moving party must file "(1) the warrant(s) or indictment(s) in the case; (2) the order granting, denying, or setting bond; and (3) a transcript of the bond hearing or a stipulation between counsel stating the evidence introduced at the bond hearing and the ruling of the circuit court." Number three here is going to be an obvious source of difficulties. Judge Hartfordshire has, of course, let the defense call eight witnesses (mother, grandmother, girlfriend, a third uncle twice removed, &cetera) to testify what a loving, hard-working saint the Pitcairn Axe Murderer is and you called two witnesses of your own. The hearing lasted four hours. Your regular court reporter might not be able to get that to you for a week or so and there is no way you're getting a stipulation from opposing counsel. Note that this does not provide for the circuit court to resolve any difficulties between prosecutor and the defense attorney so the other side would have to be cooperative and that would be contrary to his client's interest in having a bond - arguably an ethics violation. So, there will almost invariably be a delay between the circuit court ruling and your ability to appeal.

And your prize for jumping through all these hoops? The Court of Appeals will review the circuit court judge's ruling for "abuse of discretion." If your circuit court judge has stated on the record that he is constitutionally required to set a bond you might win. Otherwise, you better have some amazingly awesome facts on your side or you've spent a lot of time navigating through the reefs just to run smack dab into the shoals.


The Virginia Supreme Court doesn't have any specific rules that apply to bond review motions and no announced standard of review. However, since 19.2-124 says bond "appeals" can go to the Supreme Court and 5A:2 makes these appeals motions, one could assume that these would be dealt with under Rule 5:4 which has the same general motions requirements as laid out for the Court of Appeals above. Of course, with no instruction the rest is not clear, but it would be a good idea to send all the stuff that you did to the Court of Appeals to the Supreme Court as well and I assume they would apply the same standard: abuse of discretion. The only tricky part is whether the Supreme Court's review will be of the Court of Appeals or the circuit court. Thus styling of your motion might be something like: "Motion for Review of the Court of Appeals Review and the Circuit Court's Bond Ruling." And you would do well to address both issues in your motion to cover all the bases.

And that's it. Good luck to all of you out there brave enough to sail these treacherous waters. Bon Voyage.

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