The Judicial System and Appeals in Virginia: Explained by a Criminal Attorney in Fairfax, VA
What is a Court of Record/Not of Record?
Virginia District Courts
Virginia Circuit Courts
Court of Appeals of Virginia
When is an Appeal Final?
Supreme Court of Virginia
Can I Appeal a Case to the Virginia Supreme Court?
Our Fairfax Criminal Attorney’s Judicial System Infographic
Those who have a loved one or who they themselves face the criminal justice system in Northern Virginia often seek some level of knowledge prior to stepping foot into the courthouse…sometimes, a convicted individual is not satisfied with a court’s ruling and wishes to appeal…other times, a person who is not found guilty seeks an expungement (to seal the record of the arrest, many times for job-related purposes).
While this informational page is not legal advice (nor is anything on our website), our Fairfax criminal attorney in Virginia serves a broad region: counties such as Arlington, Fairfax, Prince William, Loudoun, Stafford, and Spotsylvania, and cities and towns including Alexandria, Manassas, Manassas Park, and Fredericksburg.
This desire of those who face or have faced the Virginia justice system often extends beyond the sole nature of a charge, and as mentioned, may involve: an appeal; petition for expungement; or a protective order (among many other possibilities). Our criminal attorney in Fairfax, VA has been asked countless fundamental questions about the Virginia Justice System, including the appeals process. To address some of the most basic inquiries, the information on this page and its’ accompanying infographic may be of use. On this page, you will learn about:
- the basic structure of the Virginia Judicial System;
- basic appeals rules (certain courts hear specific types of appeals only);
- modifications of decisions; and,
- the jurisdiction of Virginia courts, among other things.
A note to our readers and potential clients: Our criminal attorney in Fairfax, VA has a main office located near the Fairfax County General District Court. This is our main location, because Fairfax County is the largest county (by population) in the Commonwealth of Virginia. Vincenzes Law, PLLC, does however, serve in and around Fairfax County, extending as far south as Spotsylvania and Fredericksburg.
You may be familiar with general district court, juvenile and domestic relations court, and circuit court. How do these courts differ? And, why is you or your loved one’s case going to be heard in one court as opposed to the other? Our Fairfax criminal lawyer will explain the differences in the context of the criminal law. To put it very simply, in Virginia, the district court hears traffic and misdemeanor cases. It also hears felony preliminary hearings. The circuit court hears felony trials and other matters, like expungement petitions (although technically an expungement is a civil case, it typically is sought following the conclusion of a criminal case).
District courts are of limited jurisdiction, meaning they hear only certain types of cases. The same is true of circuit courts. In many jurisdictions, district and circuit courts are located in the same building (in some courthouses, including Fairfax County, they are located on different floors). Each district court judge has the authority to issue warrants, subpoenas, and summonses. It is said that these courts have original jurisdiction over misdemeanors (meaning, misdemeanor cases are always heard in district court, but if appealed, they will be heard by the circuit court).
The district court is not of record. Any appeal is considered de novo. A de novo appeal is essentially an entirely new trial. Unlike an appeal from circuit court, which our Fairfax criminal lawyer covers in the next section, there will not be a court reporter as a standard practice in the district court. Parties are, however, free to hire their own court reporter, and if the judge grants permission, an attorney can use a recording device to record a district court hearing. The juvenile and domestic relations court is considered a district court, but it has special jurisdiction over certain types of cases. There are many reasons why an attorney or a party would want to record the case at the district court level: if you speak with our criminal attorney in Fairfax, VA, he will explain why or why not it is a good choice given your case’s unique facts. Usually there is no harm at all, but it may be an extra expense and not extraordinarily necessary.
The circuit courts are of record, meaning every hearing is recorded or transcribed. Most cities (those said to be of the first class) have a circuit court, as does each county. The circuit court is said to have original jurisdiction over felonies, even though preliminary hearings may take place in a district court setting. Circuit courts may also indict individuals accused of criminal misdemeanors. As alluded above, circuit courts may be appealed from the general district court, and the appeal is considered de novo when heard in circuit court.
Virginia magistrates (formerly called Justices of Peace), are Constitutionally required to be neutral and detached. He or she must not have any bias in favor of the prosecution (or otherwise). While it is not a requirement that a magistrate also serve as a judge in the normal sense, magistrates do perform important judicial-like functions:
- magistrates can issue arrest and search warrants by making a probable cause determination; and,
- magistrates may set or deny bail (and as a result, send an arrested person to jail).
Court of Appeals and Supreme Court
The court of appeals is the appellate court to which some criminal appeals are heard. While there is no fundamental right to have a case reviewed at this judiciary level, any convicted individual may petition for a discretionary review.1
A conviction (or judgment, order, etc.) can be modified, reversed, affirmed, or set aside if the Court of Appeals of Virginia determines an error exists in the record (an error of the lower court). If a case is in reversed and sent back to the trial court (courts use the term, remanded), then any party may ask the Supreme Court of Virginia to review the decision.
Interlocutory Appeals Clarified by
our Criminal Attorney in Fairfax, VA
Generally speaking, there is no such thing as an interlocutory appeal in Virginia in criminal cases. The term, interlocutory means temporary and our criminal lawyer in Fairfax, Virginia suggests thinking of an interlocutory appeal as an interim measure. For further understanding, you may wish to consult this online legal dictionary. In limited instances, the Commonwealth may make an interlocutory appeal in the context of a pre-trial ruling.2 An interlocutory pre-trial ruling from the Court of Appeals of Virginia is considered final as to the Commonwealth; but a convicted individual may raise the same issue, if he or she later appeals.
An individual who appeals a criminal case to the Court of Appeals generally will not be granted an appeal to the Virginia Supreme Court, but this is not a hard-and-fast rule. If a question arises involving a constitutional issue or if it is an important issue that the Commonwealth of Virginia wishes to resolve (also referred to as lacking precedent), then in such a case, the Virginia Supreme Court may review the decision. The main types of matters which are not allowed to be appealed to the Virginia Supreme Court following the Court of Appeals of Virginia, are as follows:
- Traffic infractions
- Misdemeanors (when no confinement/jail is imposed)
- Felony pretrial (interlocutory) appeals by the prosecution*
*As noted, the defendant who is convicted may elect to ask either the Virginia Supreme Court or the Court of Appeals to reconsider such a pretrial appeal.
There are other matters which may not be appealed to the Virginia Supreme Court after the Court of Appeals; these involve marriage, support, custody, and other domestic relations matters.
With seven justices, the Supreme Court of Virginia is primarily an appellate level court, with one big exception: the Court is said to have original jurisdiction for writs of habeas corpus. A writ of habeas corpus is a remedy with deep historical roots, and is Latin for:
may you have the body
This phrase refers to protection against unlawful detention. Any petition for a writ of habeas corpus for one who faces the death penalty must originate with the Supreme Court of Virginia, but the Supreme Court of Virginia will review such cases as well, because the consequence is so great (and as a matter of public policy, one might say that justice so requires).
The Supreme Court Rules and Virginia Criminal Procedure
In Virginia, there are various bodies of authority. While U.S. Supreme Court Cases and federal court cases (along with other jurisdictions) are sources of authority (either binding or persuasive), in Virginia, we also have:
- The Virginia Constitution
- Chapter 19.2 of the Virginia Code (criminal procedure)
- The Virginia Code (the actual laws)
- Local Ordinances
- The Rules of the Supreme Court of Virginia
Maybe. If considering an appeal of a case at any level, we strongly suggest you consult a criminal attorney near you. If your case arises from the Northern Virginia region, then our criminal attorney in Fairfax, VA will talk to you at no cost. One of the many reasons why it is so important to seek legal counsel when an appeal is sought is due to the fact that there are very strict requirements, including deadlines, by which one must comply or risk automatic denial of review. If a case has been decided by the court of appeals and a party would like to petition the Virginia Supreme Court, it must be a case that does *not* falling into any one of the following categories:
- Cases before an administrative agency (or Industrial Commission of Virginia)
- Pretrial appeals by the Commonwealth (in felony matters as well as appeals by a defendant)**
- Criminal misdemeanors and non-criminal traffic infractions but only if no jail time is imposed; and,
- Cases involving marriage, custody, divorce, child support, adoption, and other domestic relations matters.3
**a convicted party may request reconsideration from the Virginia Supreme Court or the Court of Appeals in the instance of a pretrial appeal
As earlier mentioned, when the Virginia Supreme Court has authority to review a case from the lower Court of Appeals of Virginia, it will involve an issue potentially implicating new precedent (meaning, a new way of ruling on a particular issue), but the standard is high. As our Fairfax criminal defense attorney also earlier stated, the Supreme Court of Virginia may review a Court of Appeals decision if it involves a constitutional question.
If a conviction by a trial court (e.g., a Circuit Court) is reversed by the Court of Appeals of Virginia, then the Commonwealth (prosecution) has the ability to ask the Virginia Supreme Court for review. This is also called a writ of error.
The Code of Virginia
 Virginia Code 17.1-406
 refers to domestic relations matters covered by title 16.1 or title 20 of the Virginia Code Annotated.
Virginia Supreme Court Image Courtesy of M. Riley
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