Haywood v. Commonwealth , 15 Va. App. 297 ( 1992 )

Elder, J.,

dissenting.

I concur with the logic of Judge Benton’s dissent, but find this case distinguishable from Long v. Commonwealth, 7 Va. App. 503, 375 S.E.2d 368 (1988). In the case before us, unlike Long, the Supreme Court awarded petitioner a delayed appeal as a result of his petition for a writ of habeas corpus. Petitioner’s previous counsel had also missed a filing deadline.

Petitioner’s current counsel filed his petition for appeal one day late due to an error of the United States Postal Service. By dismissing this petition for appeal under these circumstances we are inevitably setting into motion a series of events that will lead to another petition for a writ of habeas corpus and another award of a delayed appeal by the Supreme Court. This practice clearly is an inefficient use of our judicial system and unnecessarily elevates form over substance. I would create an exception to the interpretation this Court has given Rule 5A: 12(a) under Long and grant an extension of the filing deadline of up to thirty days, as allowed by the rule, when the petition involves a delayed appeal ordered by the Supreme Court.