Lawyers trying to get a decision on the merits in the Virginia Court of Appeals know they have to clear the hurdle of Rule 5A:18, which makes sure the trial court had a chance to consider any claim of error a party wants to pursue on appeal.
Appellate lawyers had better start paying closer attention to the procedural hurdle of Rule 5A:12(c), based on the court’s Dec. 27 decision on rehearing en banc in Moore v. Commonwealth.
Moore is the case in which a split panel decided last February that a Henrico County police officer’s vehicle stop, based on a “partially peeling” safety inspection sticker, violated the Fourth Amendment.
When the case came up for rehearing en banc, the court backed off from even hearing the case on the merits. Judge Elizabeth McClanahan, who dissented from the February panel decision, said that Rule 5A:12(c) barred merits review because the defendant framed the issue in his petition for appeal as whether there was “probable cause” for the stop, not whether there was “reasonable suspicion.”
Trouble is, the Rule 5A:12(c) issue only came up sua sponte after argument in the en banc rehearing.
Not everyone went along with McClanahan’s sua sponte reliance on the “questions presented” rule. Judge William Petty would have reached the merits under the court’s “inherent authority” to decide the issue argued, but affirmed the conviction.
Judges Larry Elder and Randolph Beales, and Chief Judge Walter Felton dissented, saying the question had been properly posed for appeal and the stop was illegal.
As the confused Emily Litella used to say on Saturday Night Live: “Never mind.”