A. In a felony case a pretrial appeal from a circuit court may be taken by the Commonwealth from:
1. An order of a circuit court dismissing a warrant, information or indictment, or any count or charge thereof on the ground that (i) the defendant was deprived of a speedy trial in violation of the provisions of the Sixth Amendment to the Constitution of the United States, Article I, Section 8 of the Constitution of Virginia, or § 19.2-243; or (ii) the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Article I, Section 8 of the Constitution of Virginia; or
2. An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.
B. A petition for appeal may be taken by the Commonwealth in a felony case from any order of release on conditions pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.
C. A petition for appeal may be taken by the Commonwealth in a felony case after conviction where the sentence imposed by the circuit court is contrary to mandatory sentencing or restitution terms required by statute.
D. Nothing in this chapter shall affect the Commonwealth's right to appeal in civil matters or cases involving a violation of law relating to the state revenue or appeals pursuant to § 17.1-411 or subsection C of § 19.2-317.
E. A pretrial appeal may be taken in any criminal case from an order of a circuit court dismissing a warrant, information, summons, delinquency petition, or indictment, or any count or charge thereof, on the ground that a statute or local ordinance on which the order is based is unconstitutional.
1985, c. 510; 1987, c. 710; 1998, c. 251; 1999, cc. 829, 846; 2002, cc. 611, 692; 2003, c. 109; 2005, cc. 622, 694; 2006, cc. 571, 876.
Notes of Decisions
Cited in
267
cases (
44 in the last 5 years), 1988–2026 · leading case:
Commonwealth v. Thomas, 478 S.E.2d 715 (Va. Ct. App. 1996).
Commonwealth v. Thomas, 478 S.E.2d 715 (Va. Ct. App. 1996).
· cites it 16× “Code § 19.2-398 provides in pertinent part: A petition for appeal from a circuit court may be taken by the Commonwealth only in felony cases, before a jury is impaneled and sworn in a jury trial, or before the court begins to hear or receive evidence or the first witness is…”
Satchell v. Commonwealth, 460 S.E.2d 253 (Va. Ct. App. 1995).
· cites it 12× “In obedience to that mandate, the trial court admitted the cocaine, and a description of its seizure, into evidence.”
Ian Christian Carlson v. Commonwealth of Virginia, 823 S.E.2d 28 (Va. Ct. App. 2019).
· cites it 4× “VI, § 1; Code § 19.2-398. An appeal of a pretrial suppression ruling after the conviction of a defendant is not one of the narrow grounds of appeal allowed to the Commonwealth.”
Crawford v. Commonwealth, 686 S.E.2d 557 (Va. Ct. App. 2009).
· cites it 8× “Code § 19.2-398, which governs the Commonwealth's right of appeal, provides in relevant part as follows: A.”
Commonwealth v. Ramey, 450 S.E.2d 775 (Va. Ct. App. 1994).
· cites it 12× “In this appeal we conclude that Code § 19.2-398, which provides the Commonwealth a limited right to appeal interlocutory orders, does not violate the United States constitutional guarantee of equal protection.”
Commonwealth v. Brown, 378 S.E.2d 623 (Va. Ct. App. 1989).
· cites it 12× “This is an interlocutory appeal by the Commonwealth from an order suppressing evidence of cocaine found on the defendant when law enforcement officers searched him. We conclude that we may not entertain this appeal because the trial court's suppression order is not one which the…”
Commonwealth v. Hawkins, 390 S.E.2d 3 (Va. Ct. App. 1990).
· cites it 10× “Enacted pursuant to the foregoing constitutional authorization, Code § 19.2-398 states: A petition for appeal from a circuit court may be taken by the Commonwealth only in felony cases, before a jury is impaneled and sworn in a jury trial, or before the court begins to hear or…”
Commonwealth v. Thornton, 483 S.E.2d 487 (Va. Ct. App. 1997).
· cites it 8× “The Commonwealth appealed pursuant to Code § 19.2-398, and Thornton cross-appealed issues decided adversely to him.”
Rayshawn Torrell Greer v. Commonwealth of Virginia, 796 S.E.2d 422 (Va. Ct. App. 2017).
· cites it 7× “2-401 expressly allows a defendant to file a cross-appeal in the event that the defendant also is aggrieved by the order appealed by the Commonwealth (“If the Commonwealth appeals, the defendant may cross appeal from any orders from which the Commonwealth may appeal, pursuant to…”
State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002).
· cites it 2× “§ 7403 (state may appeal motion to suppress evidence); Va.Code Ann. § 19.2-398 (state may appeal order excluding evidence obtained in violation of specified constitutional provisions); Wash.”
Cole v. Commonwealth, 806 S.E.2d 387 (Va. 2017).
· cites it 2× “Code § 19.2-409 concerns the finality of a decision in such a pretrial appeal: Such finality of the Court of Appeals' decision shall not preclude a defendant , if he is convicted, from requesting the Court of Appeals or Supreme Court on direct appeal to reconsider an issue which…”
Bynum v. Commonwealth, 506 S.E.2d 30 (Va. Ct. App. 1998).
· cites it 8× “Second, the trial judge's ruling suppressing the statement was a pretrial ruling that the Commonwealth could have appealed, see Code § 19.2-398, and elected not to do so.”
— Va. Code Ann. § 19.2-398(0) — 1 case
— Va. Code Ann. § 19.2-398(1) — 1 case
— Va. Code Ann. § 19.2-398(2) — 26 cases
Commonwealth v. Thomas, 478 S.E.2d 715 (Va. Ct. App. 1996).
“Code § 19.2-398 provides in pertinent part: A petition for appeal from a circuit court may be taken by the Commonwealth only in felony cases, before a jury is impaneled and sworn in a jury trial, or before the court begins to hear or receive evidence or the first witness is…”
Commonwealth v. Hawkins, 390 S.E.2d 3 (Va. Ct. App. 1990).
“Enacted pursuant to the foregoing constitutional authorization, Code § 19.2-398 states: A petition for appeal from a circuit court may be taken by the Commonwealth only in felony cases, before a jury is impaneled and sworn in a jury trial, or before the court begins to hear or…”
— Va. Code Ann. § 19.2-398(A) — 10 cases
— Va. Code Ann. § 19.2-398(A)(1) — 13 cases
— Va. Code Ann. § 19.2-398(A)(1)(i) — 3 cases
— Va. Code Ann. § 19.2-398(A)(1)(ii) — 2 cases
— Va. Code Ann. § 19.2-398(A)(2) — 60 cases
Cole v. Commonwealth, 806 S.E.2d 387 (Va. 2017).
“Code § 19.2-409 concerns the finality of a decision in such a pretrial appeal: Such finality of the Court of Appeals' decision shall not preclude a defendant , if he is convicted, from requesting the Court of Appeals or Supreme Court on direct appeal to reconsider an issue which…”
Crawford v. Commonwealth, 686 S.E.2d 557 (Va. Ct. App. 2009).
“Code § 19.2-398, which governs the Commonwealth's right of appeal, provides in relevant part as follows: A.”
— Va. Code Ann. § 19.2-398(B) — 1 case
— Va. Code Ann. § 19.2-398(C) — 9 cases
Rayshawn Torrell Greer v. Commonwealth of Virginia, 796 S.E.2d 422 (Va. Ct. App. 2017).
“2-401 expressly allows a defendant to file a cross-appeal in the event that the defendant also is aggrieved by the order appealed by the Commonwealth (“If the Commonwealth appeals, the defendant may cross appeal from any orders from which the Commonwealth may appeal, pursuant to…”
— Va. Code Ann. § 19.2-398(E) — 3 cases
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