The defendant shall have no independent right of appeal pursuant to § 19.2-398. If the Commonwealth appeals, the defendant may cross appeal from any orders from which the Commonwealth may appeal, pursuant to § 19.2-398. The defendant shall be under no obligation to defend an appeal filed by the Commonwealth. However, when an appeal is taken by the Commonwealth, and the defendant wishes to defend or cross appeal, the circuit court shall, where the defendant is indigent, appoint counsel to represent the defendant on appeal. The remuneration to be awarded appointed counsel shall be governed by § 19.2-326.
In pretrial appeals, the defendant shall file a notice of cross appeal with the clerk of the circuit court within seven days following the notice of appeal filed by the Commonwealth.
Any brief on cross appeal shall be consolidated with the defendant's brief as appellee, if any.
1987, c. 710; 2003, c. 109.
Notes of Decisions
Rayshawn Torrell Greer v. Commonwealth of Virginia, 796 S.E.2d 422 (Va. Ct. App. 2017).
· cites it 4× “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…”
Commonwealth v. Thornton, 483 S.E.2d 487 (Va. Ct. App. 1997).
· cites it 4× “Code § 19.2-401 states that “[t]he defendant shall have no independent right of appeal pursuant to § 19.”
Commonwealth of Virginia v. Antonio Victor Oliver, Jr., No. 0911221 (Va. Ct. App. Nov. 9, 2022).
· cites it 4× “” Code § 19.2-401. Although Code § 19.2-408 provides that no further pretrial appeal shall lie to the Virginia Supreme Court from this Court’s decision, Code § 19.”
Commonwealth of Virginia v. Damon Am-Juan Mosley, No. 1639131 (Va. Ct. App. Feb. 11, 2014).
· cites it 6× “2 Counsel for Mosley included in the appellee’s brief a request that she be appointed as counsel for Mosley pursuant to Code § 19.2-401 and Code § 19.2-326. Code § 19.”
Commonwealth of Virginia v. Jared William Stanley, No. 0962193 (Va. Ct. App. Nov. 12, 2019).
· cites it 2× “See Code § 19.2-401 (providing that a “defendant may cross appeal from any orders from which the Commonwealth may appeal, pursuant to § 19.”
Commonwealth of Virginia v. Phillip Graham, No. 2145251 (Va. Ct. App. Apr. 28, 2026).
· cites it 2× “” See also Code § 19.2-401 (defendant has no independent right of appeal in a pretrial Commonwealth appeal; Graham’s participation here is as appellee only).”
Commonwealth of Virginia v. Marquis D. Granger, No. 2082071 (Va. Ct. App. Feb. 12, 2008).
· cites it 2× “Granger did not object to this ruling or file a cross-appeal pursuant to Code § 19.2-401. Thus, this issue is not subject to appeal.”
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