                                 CODE OF VIRGINIA

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

A. Filing and content of motion. 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 whole or in part, 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, (iii) been dismissed in part because at least one assignment of error
did not adhere to proper form of procedures, or (iv) 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 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, 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. Service, response, and disposition. Such motion shall be served on the
attorney for the Commonwealth and the Attorney General, in accordance with the
Rules of 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&#8217;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. Time limits when motion granted. If the motion is granted, all computations
of time under the Rules of 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. Applicability. 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; 2017, cc. 77, 79; 2021, Sp. Sess. I, c.
489; 2022, c. 714.