NOT AGAIN! CAV CRAFTS ANOTHER PROCEDURAL DISMISSAL[Posted December 26, 2012] Just last week, a panel of the Court of Appeals of Virginia issued a sharp rebuke of a lawyer who failed to notice the difference between the substantive proof requirements of a perjury prosecution, per the indictment, and the proof as adduced, which related to a different type of perjury. The court affirmed a conviction despite the panel’s unanimous conclusion that the defendant was not guilty of the crime of which he was charged and convicted. Sutphin v. Commonwealth.
Today, in Evans v. Commonwealth, another panel of the same court dismisses an appeal because of an elementary mistake. Evans was charged with felony failure to appear and (coincidentally) perjury. The events in the two indictments were unrelated, but the cases were consolidated for trial; the court convicted the defendant on both counts.
Evans intended to appeal the perjury conviction. Unfortunately, his lawyer prepared a notice of appeal that listed the trial court’s docket number for the other charge, and the body of the notice didn’t say anything about the nature of the offense. The parties (defense and prosecution) blithely briefed the perjury issue without realizing that the notice related to the “wrong” conviction.
Alas; the CAV picked up on this error sua sponte (this is definitely not the way any lawyer wants to learn for the first time about an error) and directed additional briefing on whether the court even had jurisdiction to consider the matter. The defense lawyer commendably acknowledged that the mistake was his alone, but his argument that this wasn’t a substantive problem fell on . . . well, not on deaf ears; but the argument was unpersuasive. The court rules today that this is not an insubstantial defect; the notice of appeal is what triggers the appellate court’s jurisdiction, and this notice didn’t adequately identify which conviction the defendant intended to appeal.
In one sense, Evans is fortunate: The panel elects to dismiss the appeal instead of simply affirming. That may enable him to pursue a statutory delayed appeal. That isn’t much fun for the lawyer, but at least it enables the client to have a meaningful day in an appellate court.
Evans and Sutphin are painful lessons in appellate advocacy, though to be fair, the problem in Sutphin arose in the trial court. For the most part, the rules of appellate practice aren’t too complex (it just seems that way sometimes), and when trains jump the tracks like this, it’s bad for the entire system. The public can lose confidence in appellate courts when rulings go astray like this. Let me quickly add that the appellate panel gets this ruling exactly right; you can’t fudge jurisdiction, and when a lawyer makes a sloppy mistake, it isn’t up to the appellate courts to fix it for him.