I was wrongfully convicted of a DWI. What can I do?
Appeal … quickly! There are two different trial courts in Virginia: general district court and circuit court. Essentially, if you do not like the outcome in general district court, you have an absolute right to a brand new trial in circuit court.
It’s not really an appeal like you see on TV; it’s a whole new trial that’s known as a “trial de novo” because Virginia attorneys still like Latin!
You must be “quick” because you only have 10 calendar days (Saturdays and Sundays count) to appeal.
Do I still need to pay my fines and surrender my license during the appeal?
No. Filing an appeal “stays” or stops any judgment from the general district court including fines, jail time, license revocation, and ASAP. If you withdraw the appeal, the judgment is re-imposed. If you proceed to trial in circuit court, the judge’s decision in the first trial is erased.
Can I appeal if I plead guilty in general district court?
Yes, the Code of Virginia states that a guilty plea does not affect your right to appeal. The prosecutor CANNOT mention that you pled guilty.
How do I appeal?
This is the easy part. You just sign a Notice of Appeal in the general district court clerk’s office. The clerk will prepare all the information – you just sign it.
WARNING: If you received active jail time in general district court, the judge may require an appeal bond. This means that you may be taken into custody until a bondsman posts the bond. I usually ask the judge if there will be an appeal bond if my client chooses to appeal. Most judges do not set appeal bonds.
How much does an appeal cost?
If you appeal, but then withdraw your appeal (just tell the general district court clerk you wish to withdraw) before the 10 days are up, the appeal costs you nothing. After 10 days, the circuit court costs are usually under $100.
What happens if I withdraw my appeal?
The judgment that you received from the general district court judge is reimposed. If you were sentenced to jail time, you will need to start serving the jail time as ordered.
How do I withdraw my appeal?
It depends. Some circuit courts will allow you to withdraw your appeal right at the clerk’s window anytime you want. Other courts require you to appear at your circuit court date and withdraw in court. Just ask your attorney or call the circuit court clerk.
What the law says:
§ 16.1-132. Right of appeal
Any person convicted in a district court of an offense not felonious shall have the right, at any time within ten days from such conviction, and whether or not such conviction was upon a plea of guilty, to appeal to the circuit court. There shall also be an appeal of right from any order or judgment of a district court forfeiting any recognizance or revoking any suspension of sentence.
§ 16.1-133. Withdrawal of appeal
Notwithstanding the provisions of § 16.1-135, any person convicted in a general district court, a juvenile and domestic relations district court, or a court of limited jurisdiction of an offense not felonious may, at any time before the appeal is heard, withdraw an appeal which has been noted, pay the fine and costs to such court, and serve any sentence which has been imposed.
A person withdrawing an appeal shall give written notice of withdrawal to the court and counsel for the prosecution prior to the hearing date of the appeal. If the appeal is withdrawn more than ten days after conviction, the circuit court shall forthwith enter an order affirming the judgment of the lower court and the clerk shall tax the costs as provided by statute. Fines and costs shall be collected by the circuit court, and all papers shall be retained in the circuit court clerk’s office.
Where the withdrawal is within ten days after conviction, no additional costs shall be charged, and the judgment of the lower court shall be imposed without further action of the circuit court.