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Virginia DWI appellate hurdle underlines advantage of beating court deadlines early

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Unnecessary sweat and worse can be caused by waiting until the last date to meet a court’s filing deadline, whether that be for filing a motion, a reply to an opponent’s filing, an appeal notice, an appellate brief, or any other court document.

Sometimes circumstances make it difficult to file in advance of a court’s filing deadline, at least where that is a short deadline, but filing in advance of the deadline is ideal. Nobody wants to be in cold sweats about delays by courier (in one instance causing a $1 million loss for the resulting delay) or other delivery services, power outages that obliterate or prevent printing the lawyer’s filing, nor weather issues that unexpectedly close the court early or for the entire day.

Some court filing deadlines are jurisdictional and completely or near unforgiving for missing them.

Some court filing deadlines give the court discretion about extending the deadlines.

Whether court filing deadlines are jurisdictional or not, whenever a lawyer can meet a court filing deadline in advance, that is ideal.

One horror story of a missed court filing deadline resulted in the 2007 Texas execution of Michael Wayne Richard, when the presiding judge refused to enable a court filing that would have stayed Richard’s execution, after his lawyer’s computer faced a glitch. Richard was executed that night.

In another instance, a veteran United States Supreme Court litigator from a big corporate law firm miscalculated his ninety-day filing deadline for a major corporate client.


In the DWI appeal of Eliseo Granado, Jr., his lawyer did everything right to perfect his petition for appeal, but ended up with a trial clerk’s office that omitted Granado’s timely-filed written statement of facts from the appellate record, and instead the clerk’s office only transmitted Granado’s amended statement of facts to the Virginia Court of Appeals. Granado v. Com., ___  Va. ___ (Sept. 9, 2016). All that filing earlier may have done might have been to be able to catch the court clerk’s omission.

Granado’s lawyer cannot be faulted here. He met the filing deadline and filed what was needed. He may have been waiting until the filing deadline to get the prosecutor’s signed agreement to the factual statement, which the prosecutor apparently only signed after the filing deadline.

In any event, with this court clerk error, Virginia’s Court of Appeals not only rejected Granado’s petition for appeal, but even denied Granado’s reconsideration request after the trial court clerk’s office corrected its error.

Then Granado and his lawyer had to go through the aggravation of seeking relief from Virginia’s Supreme Court, which thankfully granted relief in the form of ordering that his petition for appeal was timely filed, along with a timely-filed statement of facts.

Thanks to Granado’s lawyer for sticking by his client through this frustration that arose from the trial court clerk’s error and Virginia Court of Appeals’ erroneous ruling that Granado’s statement of facts was not timely filed.