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Petition kicked for ‘Questions Presented’

Someone didn’t get the memo.

The commonwealth forfeited its right to appeal a suppression order when it styled its appellate claims as “Questions Presented” instead of “Assignments of Error.”

The appellant had hit the preliminary marks: Timely notice of appeal? Check. Transcript of suppression hearing filed? Check. Petition timely filed? Check. But the original petition included two “Questions Presented” and no “Assignments of Error” as required under Supreme Court rule changes in 2010. The clerk of the Court of Appeals gave the commonwealth 10 days to correct the omission, a deadline the commonwealth met. But then the court had to rule.

Construing Va. Code § 17.1-408 and , Rule 5A:12 and Code § 19.2-402 as applied to this interlocutory criminal appeal, the appellate panel said in an unpublished order released June 12 that it could not regard the replacement petition as timely filed.

The court held that, in any interlocutory appeal by the commonwealth in a criminal case, a petition for appeal that complies with Rule 5A:12(c)(1) must be filed within 14 days of the receipt of the transcript or written statement of facts or, if there were objections to those documents, within 14 days after the trial judge signed the transcript or written statement of facts. The panel said it had no authority to grant an extension of time.

The legislative rationale behind the statutory framework is to get to a quick decision in pretrial appeals in criminal cases, as the trial is on hold until the appeal is decided.

Judges Larry G. Elder, Robert P. Frank and William G. Petty signed off on the eight-page order in Commonwealth v. Square.

By Deborah Elkins

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