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Good news for appellants

If you’re asking the Court of Appeals to consider an issue of first impression, your appeal won’t be kicked under Rule 5A:20 for failing to cite precedent directly on point.

Duh, you say. But it’s more complicated than you might think.

Rule 5A:20, which covers “Questions Presented,” requires an appellant’s opening brief to cover the “principles of law, the argument, and the authorities relating to each question presented.”

In Wilson v. Commonwealth, a cocaine defendant had a novel question: Did the trial court have jurisdiction under Va. Code § 19.2-303 to modify Wilson’s sentence, based on her claim that a witness’s perjury was evidence “in mitigation of her offense.”

The commonwealth asked the panel to dismiss the appeal under Rule 5A:20. The panel said no.

Maybe it was recalling the Virginia Supreme Court’s comment last year in Jay v. Commonwealth that the Court of Appeals had been too quick to dismiss two criminal appeals for defects under Rule 5A:20. In a series of opinions, the intermediate appellate court began expanding on its reasons for application of the rule, twice citing the Jay standard that a Rule 5A:20 slip-up had to be “significant.”

Since application of Code § 19.2-303 in Wilson was a question of first impression, it was enough that the opening brief contained “citations to the statute in question, well-reasoned arguments from the plain language of the statute, and any informative or illustrative cases.” In her 14-page argument, Wilson cited 27 cases, three code sections, and a law dictionary, according to the appellate opinion.

Writing for the Wilson panel, Judge Robert J. Humphreys said that it was “clear that she complied with Rule 5A:20.”

On the merits, the appellate court said the trial court erred in holding that it had no jurisdiction, but affirmed Wilson’s conviction because she did not meet the rest of the statutory test.

By Deborah Elkins

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