Well, you can, but it's limited to certain circumstances laid out in 19.2-398. Basically, this breaks down to (1) a dismissal of charges for speedy trial violations or constitutional reasons, (2) suppression of evidence for constitutional reasons, (3) bond conditions, (4) the judge violates mandatory sentencing statutes, and (5) if the judge rules a statute unconstitutional and dismisses the charges. If you've got a case that might fit go read the statute to make sure.
So, your case fits. Judge Smith suppressed the evidence in your Felony Snipe Hunting charges because he believes there was an unconstitutional search under the 4th Amendment. What do you do now?
Well, prosecutors in Virginia have very different rules for their appeals than defendants do. So even if you spent years doing appeals as a defense attorney, or maybe because you spent years doing appeals as a defense attorney, you need to know that the timeline is much, much shorter and conduct yourself accordingly.
First off, you need to know that the luxuriously long 30 days that defense attorneys have to file notice of appeal ain't there for you. Nope, under 19.2-400 a prosecutor gets a whole 7 days to file a notice of appeal (not even seven business days). First things first, get the judge to sign an order for transcripts to be typed up. Here again the timeline is different. Unlike an order for a defense appeal, your transcripts must be delivered no more than 25 days from the trial court's suppression order (defense gets 60), although the Court of Appeals can grant up to a 45 day extension. 19.2-405. Once you've gotten the order for transcription, file your notice of appeal. Rule 5A:6 is the form used to note an appeal. HOWEVER, be aware that it is not complete if you are a prosecutor. In addition to what's in 5A:6, if you are appealing a suppression of evidence you must "certify in the notice of appeal that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding." 19.2-400. Note also that the written portion of 5A:6 wants a lot more information about both counsel than the form it gives you including whether defense counsel is hired or appointed, email addresses, Bar numbers, &cetera. Per Rule 5A:6, send the notice of appeal to the circuit court clerk, opposing counsel, and the clerk of the Court of Appeals.
Then you wait until the transcript arrives. After this arrives, you must file a notice of its arrival and filing with the clerk of the circuit court (who should already have a copy) and send a copy to the defense attorney; make sure to certify that the notice has been sent to the defense attorney. 19.2-403. THIS NOTICE MUST BE FILED WITHIN 3 days of receiving the transcript or 14 days of the judge's suppression order, whichever is later. 19.2-403.
From the day the notice of transcripts is filed, you have 14 days to file your petition. 19.2-402. Send 4 copies to the clerk of the court of appeals and 1 copy to the defense attorney. Rule 5A:12. Thereafter the defense attorney will have 14 days to file his brief in opposition. 19.2-402. After that the only thing you might have too do is an oral presentation to judges of the Court of Appeals, if you demanded one in your petition. Then, the Court of Appeals decides whether to accept the petition within 30 days of the defense attorney's brief. 19.2-403. If it does, the Attorney General takes over and you just wait until someone sends you the result. 19.2-404. If you lose, you lose. The Supreme Court of Virginia doesn't exist as far as we're concerned. 19.2-408.
Okay, so that covers the timeline. Now, what should be in the petition?
Petitions are pretty standard no matter who is filing them and they are governed by Rule 5A. DO NOT USE RULE 5. For some unknown, unfathomable, and irrational reason, the Supreme Court's petition/brief requirements always vary from the Court of Appeals' petition/brief requirements. Once in a while the worst of these variances gets fixed (Questions/Errors), but don't take the chance that a variance will get your petition kicked on a technicality.
What I put in a petition and the order I put them in (See Rule 5A:12):
1. Cover Page - Not required but makes a better presentation.
2. Table of Contents - List everything the Rules require and anything else you thought important enough to give its own header.
3. Table of Authorities - List every case (alphabetically), statute, or other authority and every place it is cited in your petition.
4. Nature of the Case & Material Proceedings Below - Briefly state (a paragraph or two) what type of case it is, what hearings took place, and the results of the hearings.
5. "Assignments of Error" - MUST be a separate section. MUST be under exactly that heading. MUST contain all errors you want to appeal. These errors must be more than a bare allegation of error; they are to describe the error without being overly verbose. MUST have a citation attached to each error where it occurred / was preserved. For this last, a defense attorney would normally cite where he objected. In most cases you probably don't need to do that as you are arguing against a defense motion and your objection is inherit in that (object to the ruling anyway to be safe). HOWEVER, if a judge errs during sentencing of mandatory sentences note your objection. There was no defense motion here and therefore a much stronger argument that you waive your objection by not stating it to the trial court.
5. Statement of Facts - A summary of the facts of the case with citation to the record. Typically, this will be in the following format: Sentence, cite. Sentence, cite. Sentence, cite. Example: The defendants were caught snipe hunting (Tr. 23).
6. Authorities & Argument - This is where you (1) state the law as it applies to your facts, (2) the standard the Court of Appeals should use in reviewing the error, and (3) how the facts should have been dealt with in accord with that law. I like to break this up in two sections for each error. I first lay out the law and standard under an Authorities section and then lay its proper application under an Argument section.
7. Conclusion - Brief summary of all the things you are right about and then STATE THE RELIEF you are asking for. It doesn't do much good to make the most perfect argument ever seen in the annals of Virginia's history if you don't ask anything to be done with it. After all, you could just be asking the Court of Appeals to make the judge be nicer to you. You could be asking for a writ of mandamus requiring the comp board to actually pay you a decent salary.. They don't know. They're just simple appellate judges who need these things spelled out for them. Typically, relief asked for will be an overruling of the trial judge and a return to the trial court for further proceedings.
There is no listed order for the sections of the petition, so you can exercise some discretion. Just don't be stupid about it. Remember, if the Court of Appeals rejects your perfect argument because your first section was the Conclusion and your last was your Assignments of Error you lose. You don't get to appeal to the Virginia Supreme Court and get a ruling that essentially says "Yes, it's stupid, but it's within the rules. Remand." You Lose.
8: Contact Information - Somebody's Bar number, phone number, address,, and email has to go on the petition. If you're proud of your work put yours. If you're not then there's always the newest kid in the office - he'll never notice.
(and for those of you too literal minded to realize that's a joke - That's A Joke - put your dang name on your work).
9. Certification - You must certify when you sent a copy of the petition to defense counsel, whether you want to state orally why the petition should be granted, that the number of words in the petition is less than 12,300 (state the number in the petition exactly)(this last requirement is from Rule 5A:4), and that 4 copies have been sent to the clerk of the Court of Appeals. This last one doesn't seem to be required, but everybody does it anyway.
Other things to remember: Don't forget the format requirements under 5A:4. Font must be 12-point or higher. Paper must be 11.5 X 8". Double space your text except for Assignment of Errors, headings, quotes, and footnotes. Don't screw with your margins. Use black print on white paper.
Almost all of that comes out of the early days of computer printing when petitions and briefs were limited by page length instead of word count. I wouldn't expect those problems to surface much in modern days.
Interestingly, the Court of Appeals has not limited its font types like the Virginia Supreme Court has. I'd suggest keeping it to easy to read fonts such as the VaSC had previously limited its filings to (Arial, Verdona, and Courier) especially if you're going to keep your font at 12-point. They're not pretty fonts, but they're easily readable even after you've already read thirty briefs that day. The pretty fonts (Times New Roman, Palatino Lynotype, &cetera) look better, but the serifs and swirls all blend together if you're over 35 years old and have been reading for an hour or two. [As an aside, the VaSC is going to regret allowing these fancy-blur together fonts. All the young attorneys will use them to impress the Court. All the older attorneys will use them to impress the client. All the Supreme Court Justices will go blind trying to read them (unless maybe the VaSC's requirement of 14-point font saves them.)]
And now I've taught you all the basics of filing a prosecutor's appeal to the Court of Appeals of Virginia. Go forth, be fruitful, and appellefy.
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