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Entire Court of Appeals to consider petition issue

The entire Court of Appeals of Virginia has announced it will take another look at the issue of defective petitions for appeal. A three-judge court panel declared earlier this month that vague references to the record in assignments of error in petitions would be fatal – the appeals would be dismissed without an opportunity to fix the defects.

In an order entered Wednesday, the court, on its own motion, decided to rehear the matter en banc. Lawyers were asked to file new briefs.

The Aug. 14 order in Chatman v. Commonwealth (VLW 012-7-239) signaled a change in the practice of allowing lawyers 10 days to refile petitions for appeal if they ran afoul of requirements for specific references to the record.

Despite having already granted writs of appeal in the three consolidated cases, the court dismissed all three appeals. Basing its decision on a 2011 published order from the Supreme Court of Virginia, the panel concluded failure to provide a precise record citation for trial objections deprived the court of appellate jurisdiction.

The harsh result led one appellate practitioner to label the Chatman order a “train wreck,” noting a worthy appeal could be forever lost for a typographic error.

– Peter Vieth

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