Va. Code » Title 19.2. Criminal Procedure » Chapter 19. Exceptions and Writs of Error
Virginia Code

Va. Code Ann. § 19.2-321.1 (2026)

Motion in the Court of Appeals for delayed appeal in criminal cases

✓ current as of May 2026
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A. Filing and content of motion. When, due to the error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the circuit court or an officer or employee thereof, an appeal, in whole or in part, in a criminal case has (i) never been initiated, (ii) been dismissed for failure to adhere to proper form, procedures, or time limits in the perfection of the appeal, (iii) been dismissed in part because at least one assignment of error did not adhere to proper form of procedures, or (iv) the conviction has been affirmed for failure to file or timely file the indispensable transcript or written statement of facts as required by law or by the Rules of Supreme Court, then a motion for leave to pursue a delayed appeal may be filed in the Court of Appeals within six months after the appeal has been dismissed, the conviction has been affirmed, or the circuit court judgment sought to be appealed has become final, whichever is later. Such motion shall identify the circuit court and the style, date, and circuit court record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment, shall give the Court of Appeals record number in that proceeding, and shall set forth the specific facts establishing the said error, neglect, or fault. If the error, neglect, or fault is alleged to be that of an attorney representing the appellant, the motion shall be accompanied by the affidavit of the attorney whose error, neglect, or fault is alleged, verifying the specific facts alleged in the motion, and certifying that the appellant is not personally responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal.

B. Service, response, and disposition. Such motion shall be served on the attorney for the Commonwealth and the Attorney General, in accordance with the Rules of Supreme Court. If the Commonwealth disputes the facts alleged in the motion, or contends that those facts do not entitle the appellant to a delayed appeal under this section, the motion shall be denied without prejudice to the appellant's right to seek a delayed appeal by means of petition for a writ of habeas corpus. Otherwise, the Court of Appeals shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal.

C. Time limits when motion granted. If the motion is granted, all computations of time under the Rules of Supreme Court shall run from the date of the order of the Court of Appeals granting the motion, or if the appellant has been determined to be indigent, from the date of the order by the circuit court appointing counsel to represent the appellant in the delayed appeal, whichever is later.

D. Applicability. The provisions of this section shall not apply to cases in which the appellant is responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal, nor shall it apply in cases where the claim of error, neglect, or fault has already been alleged and rejected in a prior judicial proceeding.

2005, c. 836; 2011, c. 278; 2017, cc. 77, 79; 2021, Sp. Sess. I, c. 489; 2022, c. 714.

Notes of Decisions
Cited in 29 cases (18 in the last 5 years), 2009–2026 · leading case: Steve Whitt v. Commonwealth of Virginia, 739 S.E.2d 254 (Va. Ct. App. 2013).
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Steve Whitt v. Commonwealth of Virginia, 739 S.E.2d 254 (Va. Ct. App. 2013). · cites it 26× “Code § 19.2-321.1 permits a litigant in a criminal case to file a motion to reinstate an appeal that has been dismissed.”
Smith v. Commonwealth, 693 S.E.2d 765 (Va. Ct. App. 2010). · cites it 16× “Smith asserts that he did so in order to attempt to avail himself of the provisions of Code § 19.2-321.1. He argues that, if applicable, Code § 19.”
Donte Lavell Brooks v. Commonwealth of Virginia, 739 S.E.2d 245 (Va. Ct. App. 2013). · cites it 10× “Then, the appellant must initiate a separate proceeding, either by petitioning for a writ of habeas corpus or by resorting to Code § 19.2-321.1. A court must adjudicate the claim and grant relief.”
Smith v. Com., 706 S.E.2d 889 (Va. 2011). · cites it 4× “[1] Smith also asserted that a disposition other than dismissal would have the collateral effect of denying him his statutory remedy for obtaining a belated appeal under Code § 19.2-321.1 because that remedy is based on the "dismissal" of an appeal for failure to comply with…”
Brooks v. Commonwealth, 739 S.E.2d 224 (Va. Ct. App. 2013). · cites it 6× “Then, the appellant must initiate a separate proceeding, either by petitioning for a writ of habeas corpus or by resorting to Code § 19.2-321.1. A court must adjudicate the claim and grant relief.”
Chatman v. Commonwealth, 731 S.E.2d 24 (Va. Ct. App. 2012). · cites it 2× “1 (permitting this Court to grant a motion for a delayed appeal “[w]hen, due to the error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the circuit court or an officer or employee thereof, an appeal in a criminal case has .”
Jason Patrick Phillips v. Commonwealth of Virginia (Va. Ct. App. 2023). · cites it 4× “See Code § 19.2-321.1. This Court directed the trial court to appoint Phillips counsel to effectuate it.”
Johnson v. Dir. of the Virginia Dep't of Corr. (E.D. Va. 2022). · cites it 3× “On July 25, 2019, while his petition for direct appeal was pending in the Supreme Court of Virginia, appellate counsel filed a motion for a delayed appeal pursuant to Virginia Code § 19.2-321.1 in the Court of Appeals of Virginia.”
Ferebee v. Gilley (W.D. Va. 2022). · cites it 3× “§ 19.2-321.1 . Rather, the Court denied Ferebee’s appeal only because an appeal is not authorized under the Virginia Code from a denial of the type of motion Ferebee had pursued.”
Roberto Tyrone Chatman v. Commonwealth of Virginia (Va. Ct. App. 2013). · cites it 4× “- 17 - Because Chatman failed to timely file a petition for appeal that complied with the requirements of Rule 5A:12(c)(1), I would vacate the order granting his petition and dismiss his appeal.”
David C. Gilliam, III v. Commonwealth of Virginia (Va. Ct. App. 2009). · cites it 4× “” Code § 19.2-321.1. Here, the circuit court appointed counsel for Gilliam on April 25, 2008.”
Anthony Andre's Mackey v. Commonwealth of Virginia (Va. Ct. App. 2021). · cites it 2× “4 We recognize that the appellant has the right to file a motion in this Court for leave to pursue a delayed appeal, pursuant to Code § 19.2-321.1. -7-”
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Va. Code Ann. § 19.2-321.1(A): 5 cases
Michael Alan Webb v. Commonwealth of Virginia (Va. Ct. App. 2024).
Johnson v. Dir. of the Virginia Dep't of Corr. (E.D. Va. 2022). “On July 25, 2019, while his petition for direct appeal was pending in the Supreme Court of Virginia, appellate counsel filed a motion for a delayed appeal pursuant to Virginia Code § 19.2-321.1 in the Court of Appeals of Virginia.”
Ferebee v. Gilley (W.D. Va. 2022). “§ 19.2-321.1 . Rather, the Court denied Ferebee’s appeal only because an appeal is not authorized under the Virginia Code from a denial of the type of motion Ferebee had pursued.”
Karen Taylor Kusterer v. Commonwealth of Virginia (Va. Ct. App. 2026).
Karen Taylor Kusterer v. Commonwealth of Virginia (Va. Ct. App. 2026).
Va. Code Ann. § 19.2-321.1(A)(iv): 2 cases
Robert Maurice Bates v. Commonwealth of Virginia (Va. Ct. App. 2023).
Nigel Emanuel McCauley v. Commonwealth of Virginia (Va. Ct. App. 2023).
Va. Code Ann. § 19.2-321.1(a): 1 case
Igal Vondale Davis v. Commonwealth of Virginia (Va. Ct. App. 2026).
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