Belew v. Com.

PRESENT: All the Justices

VICKIE MARRS BELEW
OPINION BY
v. Record No. 110532 JUSTICE WILLIAM C. MIMS
June 7, 2012
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in declining to consider a transcript that was not filed

within the 60-day period set forth in Rule 5A:8(a) but that

ostensibly was made part of the record by the circuit court

under Code § 8.01-428(B) and Rule 5A:9 as the correction of a

clerical mistake.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Belew was convicted in the Circuit Court of Albemarle

County of felony failure to stop at the scene of an accident,

in violation of Code § 46.2-894. On May 25, 2010, the court

entered final judgment sentencing her to a term of five years’

imprisonment and suspending all but ninety days of

incarceration.

Belew commenced her appeal by filing a timely notice of

appeal. On July 12, 2010, the court reporter filed transcripts

of proceedings from March 17 and May 25, 2010. However, no

transcript was filed of proceedings from March 3, 2010, the

date on which the circuit court heard testimony and received
evidence, because the case management system indicated that

proceedings scheduled for that day had been continued.

Belew did not realize the March 3, 2010, transcript (“the

Missing Transcript”) had been omitted until September 16, 2010.

Upon discovering the omission, she promptly notified the court

reporter, who prepared the Missing Transcript and filed it on

September 22, 2010. Belew then moved the circuit court under

Code § 8.01-428(B) to make the Missing Transcript part of the

record, asserting that the court reporter’s failure to file it

in a timely manner was a clerical mistake within the

contemplation of the statute. The Commonwealth’s attorney did

not oppose the motion. The circuit court entered an order on

September 24, 2010 making the Missing Transcript part of the

record. The court also entered an order under Rule 5A:9

ordering the clerk of court to transmit the Missing Transcript

to the Court of Appeals.

Belew filed a petition for appeal in the Court of Appeals

on October 7, 2010. Thereafter, the Court of Appeals entered a

per curiam order denying the petition. The per curiam order

stated that Belew

timely noted her appeal. She timely filed
transcripts of the preliminary hearing, the
March 17 trial date, and the sentencing hearing.
Belew did not timely file a transcript of the
March 3 trial date.

. . . .

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 Belew did not file the trial transcript
within sixty days, as required by [Rule
5A:8(a)]. Furthermore, Belew has never
requested this Court to grant an extension of
the deadline. While this Court sympathizes with
the problems encountered by counsel, the
undisputed fact remains the transcript was not
timely filed. Counsel had a responsibility to
ensure preparation of the transcript, or request
an extension. Since the transcript was not
timely filed, the Court will not consider it in
evaluating this appeal.

(Footnote omitted). The order further stated that without the

Missing Transcript, the record on appeal was insufficient to

allow the Court of Appeals to review her assignments of error,

which therefore were waived. We awarded Belew this appeal.

II. ANALYSIS

Belew argues that the Court of Appeals erred by failing to

give effect to the circuit court’s orders under Code § 8.01-

428(B) and Rule 5A:9 making the Missing Transcript part of the

record on appeal. This argument raises the question of whether

the circuit court’s orders were validly entered pursuant to

authority conferred by the statute and the Rule. We review

interpretation of statutes and the Rules of this Court de novo.

LaCava v. Commonwealth, 283 Va. 465, 470-71, 722 S.E.2d 838,

840 (2012).

Generally, a circuit court loses jurisdiction over a case

21 days after the entry of a final order. Rule 1:1; see also

Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 563, 561

3
S.E.2d 734, 739 (2002) (“Once a final judgment has been entered

and the twenty-one day time period of Rule 1:1 has expired, the

trial court is thereafter without jurisdiction in the case.”).

However, the general rule may be superseded by a statute in

which the General Assembly expresses its intent that courts

retain jurisdiction. See Commonwealth v. Morris, 281 Va. 70,

77, 705 S.E.2d 503, 506 (2011) (recognizing that statutes may

create exceptions to Rule 1:1). Code § 8.01-428(B) provides

that

[c]lerical mistakes in all judgments or other
parts of the record and errors therein arising
from oversight or from an inadvertent omission
may be corrected by the court at any time on its
own initiative or upon the motion of any party
and after such notice, as the court may order.
During the pendency of an appeal, such mistakes
may be corrected before the appeal is docketed
in the appellate court, and thereafter while the
appeal is pending such mistakes may be corrected
with leave of the appellate court.

Because Code § 8.01-428(B) expressly allows a court to correct

qualifying mistakes “at any time,” it confers jurisdiction on

courts beyond the 21-day period for that limited purpose.

We considered the scope of this statutory exception in

Lamb v. Commonwealth, 222 Va. 161, 279 S.E.2d 389 (1981). In

that case, the court reporter had incorrectly transcribed the

word “Lee” as “me” on line 9 of page 58 of the first volume of

the transcript. The circuit court entered an order under the

statute correcting the transcript at the request of the

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Commonwealth and the defendant appealed. Id. at 163, 279

S.E.2d at 390-91. We held that the term “clerical mistake” as

used in the statute was sufficiently broad to encompass

oversight or inadvertent omission by court reporters as well as

clerks of court and their subordinates. Id. at 164-65, 279

S.E.2d at 391-92.

We also held that for the purposes of the statute, an

appeal “is docketed in the appellate court” when the petition

for appeal is received in the appellate court. Id. at 165, 279

S.E.2d at 392. Although we acknowledged that the assignment of

a record number and receipt of the record are incidents of the

appeal becoming “docketed,” we nevertheless identified the

receipt of the petition for appeal as the determinative event

for the purpose of Code § 8.01-428(B). Id. at 165, 279 S.E.2d

at 392. We considered and rejected the notion that an appeal

be determined to be docketed upon receipt of the record, even

though “[i]n many instances, the record is received before the

petition for appeal is filed.” Id. Thus, while the deadline

for filing a petition for appeal in the Court of Appeals runs

from the date on which the record is filed in that court, Rule

5A:12(a), this fact does not alter our analysis. In both the

Court of Appeals and this Court, the filing of the petition for

appeal is determinative. It is only in the petition for appeal

where the appellant must identify the errors relied on.

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Compare Rule 5:17(c)(1) with Rule 5A:12(c)(1). Further, the

filing of the petition is jurisdictional, and if the appellant

fails to file on time, the appeal is dismissed. See, e.g., Jay

v. Commonwealth, 275 Va. 510, 517-18, 659 S.E.2d 311, 315

(2008) (contrasting dismissal of an appeal for a jurisdictional

defect with denying an asserted ground for appeal because of a

non-jurisdictional defect).

In this case, there is no question that the court reporter

failed to transcribe and file the Missing Transcript because of

an error in the trial court’s case management system. No one

suggests that the court reporter’s failure to do so was

anything other than an “oversight” or “inadvertent omission”

under Code § 8.01-428(B). Likewise, the facts establish beyond

dispute that the circuit court granted Belew’s motion to make

the Missing Transcript part of the record prior to the filing

of her petition for appeal and while it had jurisdiction to do

so under the statute. Because the circuit court retained

statutory authority to correct the record, it was authorized

under Rule 5A:9 to make the Missing Transcript part of the

record on appeal.

Accordingly, Rule 5A:8(a) did not require Belew to file a

motion in the Court of Appeals for an extension of time to make

the Missing Transcript part of the record. The circuit court’s

6
statutory authority to correct the record superseded the

requirements of the Rule.

The Commonwealth argues that the omission of the Missing

Transcript from the record was not a clerical mistake within

the meaning of the statute. Echoing the Court of Appeals, the

Commonwealth points to Belew’s failure to observe that the

Missing Transcript had not been filed within the 60-day period

set forth in Rule 5A:8(a). The Commonwealth notes that Belew

filed a notice of filing transcripts as required by Rule

5A:8(b) on July 15, 2010. That document specifically noted the

filing of transcripts of proceedings from March 17 and May 25,

2010 but did not include the Missing Transcript. The

Commonwealth asserts she therefore knew that it had not been

filed. Any oversight or inadvertent omission of the court

reporter by not filing the Missing Transcript, according to the

Commonwealth, was superseded by Belew’s failure to investigate

the omission promptly. A prompt investigation would have

permitted her either to file the Missing Transcript before the

60-day period expired on July 24, 2010, or at least to file a

motion in the Court of Appeals for an extension of time

pursuant to Rule 5A:8(a). However, the Commonwealth continues,

by September 16, 2010, when she realized the Missing Transcript

had not been filed, both options were foreclosed. We disagree.

7
 No provision in Code § 8.01-428(B) supports the

Commonwealth’s argument that the court reporter’s oversight or

inadvertent omission due to the erroneous case management

system entry was superseded by Belew’s failure to notice and

react to the omission of the Missing Transcript before the Rule

5A:8(a) 60-day deadline expired. To the contrary, even a

party’s failure to prepare an order was deemed an “oversight”

in Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 53

(1979). There, the chancellor asked the party to prepare an

order to reflect the chancellor’s decision in a divorce

proceeding. Id. at 640, 261 S.E.2d at 53. Several years later

when the oversight was realized, the chancellor entered a nunc

pro tunc order to reflect the earlier decision. Id. Citing

Code § 8.01-428(B), this Court stated that a trial court “has

the power to correct such ministerial omissions.” Id. at 641,

261 S.E.2d at 53.

The Commonwealth also argues that Lamb is distinguishable

because in that case we merely upheld the correction of an

error in a transcript that was already part of the record. We

again disagree.

There is no statutory language or case law that restricts

the application of the statute and deprives the circuit court

of authority to make an omitted volume of the transcript part

of the record along with the other volumes it already

8
contained. The only relevant questions under the provisions of

Code § 8.01-428(B) are whether the nature of the correction

falls in the category of “[c]lerical mistakes” or “errors” in a

judgment or “other parts of the record” and whether such

mistakes or errors arose “from oversight or from an inadvertent

omission.”

Although the circuit court’s order in Lamb was limited to

a specific correction of a word within a transcript and in this

case the transcript of an entire day of proceedings was

omitted, this is a distinction without a difference. While the

mistake in Lamb was a single word in one transcript volume, the

error in Cutshaw was the omission of an entire order requested

by the chancellor. In neither case did the Court base its

decision on the magnitude of the mistake to be corrected.

To hold otherwise would open the door to a series of

questions to define the scope of the statute when a court

reporter inadvertently omits part of a trial’s proceedings.

Would Code § 8.01-428(B) permit the circuit court to correct a

transcript where only a witness’s response to a question was

omitted? Where his cross-examination was omitted? Where his

entire testimony was omitted? Where a party’s opening

statement or closing argument was omitted? Fortunately, the

plain language of Code § 8.01-428(B) neither requires nor

permits us to draw such arbitrary distinctions.

9
 Accordingly, the omission of the Missing Transcript was

clerical error within the meaning of Code § 8.01-428(B) and the

circuit court had authority under the statute to correct the

error prior to Belew’s filing of her petition for appeal in the

Court of Appeals. The court thus had authority under Rule 5A:9

to make the Missing Transcript part of the record and Belew was

not required to seek an extension of time from the Court of

Appeals under Rule 5A:8(a). Consequently, the Court of Appeals

erred in failing to consider the Missing Transcript in its

review of the petition for appeal. We therefore will reverse

its judgment and remand with directions to review the petition

on its merits, considering the Missing Transcript as part of

the record.

Reversed and remanded.

JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE
MCCLANAHAN join, dissenting.

In my opinion, Code § 8.01-428(B) does not govern the

outcome of this case and, therefore, I must respectfully

dissent from the majority decision. I agree with the majority

to the extent that, because this Court has held that Code

§ 8.01-428(B) allows for the correction of a clerical mistake

involving a single word, we might, at some point, be called

upon to allow for the correction of the inadvertent omission of

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an entire paragraph, page or group of pages. 1 When such a

situation presents itself and the details are sufficiently

fleshed out, I might agree that this Court cannot draw the line

as to the extent of the clerical mistake that can be corrected

within a transcript. However, this is not that case.

1
I question the majority’s reliance on Lamb v.
Commonwealth, 222 Va. 161, 279 S.E.2d 389 (1981), in its
determination for when an appeal is docketed in the Court of
Appeals. As we explained in Lamb, “there is no time limit
within which leave of this Court may be granted.” Id. at 166,
279 S.E.2d at 392. Rather than dispose of the issue by simply
granting ex post facto leave to Belew to correct the
transcript, as we did in Lamb, the majority instead goes to
great lengths to apply the holding of Lamb to the Court of
Appeals while at the same time dismissing the underlying
rationale of that holding.
As an initial matter, I find it significant that Lamb was
decided in 1981, four years before the General Assembly created
the Court of Appeals. This Court could not have contemplated
the significant differences in the Rules of Court applicable to
the appellate process in this Court and those applicable to the
Court of Appeals.
Furthermore, our decision in Lamb was based on the fact
that “[a] record number is assigned which identifies the
petition and all other documents, including the record, that
are filed in connection therewith until the final disposition
of the case in our Court.” Id. at 165, 279 S.E.2d at 392.
Significantly, no other rationale is stated. In this Court,
the record number is only assigned upon the filing of the
petition for appeal. Id. Although the record may arrive prior
to the filing of the petition for appeal, no record number is
assigned until the petition for appeal is filed. In the Court
of Appeals, however, the record number is assigned upon the
filing of the record, as demonstrated by the letter sent by the
Court of Appeals clerk’s office dated September 14, 2010
informing the parties that the record had been transmitted from
the trial court to the Court of Appeals. The letter clearly
indicates that a record number (1168-10-2) had been assigned to
the case. Recognizing this fact, the majority simply dismisses
the original rationale of Lamb as a mere “incident[] of the
appeal becoming ‘docketed’” and proceeds to ascribe an entirely
new rationale.

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 Despite the majority’s assertions to the contrary, the

issue before this Court is not the clerical error made by the

court reporter, nor is it how a court reporter

compartmentalizes what is transcribed. The issue before this

Court is Belew’s failure to timely notice that an entire

transcript, consisting of the lion’s share of her trial, was

missing and her subsequent failure to take appropriate action.

The majority ignores the fact that there is a significant

difference between an omission within a transcript and the

omission of an entire transcript or an entire volume of a

transcript. While the former may not be readily apparent

within the 60 day-period for filing transcripts as set forth in

Rule 5A:8(a), the same cannot be said for the latter. It is

especially true in this instance, where Rule 5A:8(b)(2),

entitled “Multiple Transcripts,” required appellant to

“identify all transcripts filed” and Belew specifically

identified only the transcripts for March 17 and May 25, 2010,

as being filed.

The majority goes to great lengths to demonstrate the fact

that the actions of the court reporter were inadvertent, a

position with which I take no issue. Rather, my issue is with

the fact that the majority never addresses Belew’s failure to

follow Rule 5A:8(a) after the court reporter’s mistake became

12
readily apparent. A mistake on the part of the court reporter

cannot excuse Belew’s inattentiveness to the omission.

The majority asserts that the court reporter’s inadvertent

omission is not superseded by Belew’s failure to follow Rule

5A:8(a); however, the majority never explains the converse: how

the inadvertent omission of the court reporter supersedes

Belew’s failure to follow Rule 5A:8(a) due to her own,

admitted, inattentiveness. Rule 5A:8(b)(4)(ii) specifically

states that “[w]hen the appellant fails to ensure that the

record contains transcripts or a written statement of facts

necessary to permit resolution of appellate issues, any

assignments of error affected by such omission shall not be

considered.” (Emphasis added.) Similarly, this Court has

repeatedly admonished that “the onus is upon the appellant to

provide the reviewing court with a sufficient record from which

it can be determined whether the trial court erred as the

appellant alleges.” White v. Morano, 249 Va. 27, 30, 452

S.E.2d 856, 858 (1995). The majority, however, would add an

exception to Rule 5A:8(b)(4)(ii) such that it would not apply

to an inattentive appellant who was, or should have been, aware

that the record was deficient due to a clerical error that was

readily apparent and subject to correction.

Furthermore, Belew could have taken advantage of Rule

5A:8(a) to correct the omission. As we recently explained,

13
“[t]he plain language of Rule 5A:8(a) provides a party 90 days

from the entry of final judgment within which to file a motion

to extend the 60-day period within which to file transcripts.”

LaCava v. Commonwealth, 283 Va. 465, 471, 722 S.E.2d 838, 840

(2012). On July 26, 2010, 2 the deadline for filing transcripts

expired and Belew was, or should have been, aware that an

entire transcript was missing. At that point, she still had

twenty-eight days, until August 23, 2010, to file a request for

an extension with the Court of Appeals.

In my opinion, the majority mischaracterizes the

Commonwealth’s argument. The Commonwealth does not, as the

majority states, argue that Belew’s inattentiveness supersedes

the court reporter’s inadvertent omission. Rather, the

Commonwealth argues that Code § 8.01-428(B) cannot be used to

supplement a deficient record. The plain language of both Code

§ 8.01-428(B) and Rule 5A:8(a) clearly support the

Commonwealth’s argument.

The holdings in our prior cases addressing the

applicability of Code § 8.01-428(B) clearly define the

limitations of its reach. Code § 8.01-428(B) is specifically

limited to “[c]lerical mistakes in all judgments or other parts

2
July 24, 2010, fell on a Saturday. Therefore, the
transcript was not due until the following Monday, July 26,
2010.

14
of the record.” (Emphasis added.) This Court has recognized

that “the statutory power granted by Code § 8.01-428 is to be

narrowly construed and applied.” Davis v. Mullins, 251 Va.

141, 149, 466 S.E.2d 90, 94 (1996). We have consistently held

that the proper use of Code § 8.01-428(B) is to make an

incorrect record “speak the truth.” See Jefferson v.

Commonwealth, 269 Va. 136, 140, 607 S.E.2d 107, 110 (2005);

School Bd. of the City of Lynchburg v. Caudill Rowlett Scott,

Inc., 237 Va. 550, 555, 379 S.E.2d 319, 322 (1989).

Examples of clerical errors include a
typographical error made by a court reporter
while transcribing a court proceeding, Lamb v.
Commonwealth, 222 Va. 161, 165, 279 S.E.2d 389,
392 (1981), or an unintended error in the
drafting of a divorce decree, Dorn v. Dorn, 222
Va. 288, 291, 279 S.E.2d 393, 394 (1981).

Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283,

568 S.E.2d 671, 673 (2002). Notably, we have never extended

Code § 8.01-428(B) to entirely missing transcripts or volumes

of transcripts.

Rule 5A:8(a), on the other hand, establishes that a

transcript only becomes “part of the record when it is filed in

the office of the clerk of the trial court within 60 days after

entry of the final judgment.” (Emphasis added). Thus, a

transcript that is not filed within 60 days after entry of the

final judgment is not part of the record. In the present case,

the Missing Transcript was filed 120 days after entry of the

15
final judgment. As such, the Missing Transcript was never made

a part of the record and, therefore, Code § 8.01-428(B) has no

applicability.

I also find the majority’s reliance on Cutshaw v. Cutshaw,

220 Va. 638, 261 S.E.2d 52 (1979), misplaced. As an initial

matter, the “oversight” in Cutshaw involved the omission of an

order, which could be corrected nunc pro tunc.

The purpose of an order entered nunc pro tunc is
to correct mistakes or omissions in the record
so that the record properly reflects the events
that actually took place. Orders entered nunc
pro tunc cannot retroactively record an event
that never occurred, or have the record reflect
a fact that never existed.

Antisdel v. Ashby, 279 Va. 42, 50-51, 688 S.E.2d 163, 168

(2010) (citations omitted). This is something entirely

different from Belew’s failure to follow a Rule of Court.

Furthermore, the entire holding in Cutshaw was: “A court

has the power to correct such ministerial omissions nunc pro

tunc when the record clearly supports such corrections.” Id.

at 641, 261 S.E.2d at 53 (emphasis added). Such orders “can

only be entered where there is sufficient record evidence to

authorize the amendment.” Council v. Commonwealth, 198 Va.

288, 291, 94 S.E.2d 245, 247 (1981). Therefore, Cutshaw is

particularly inapposite, as the present case does not involve

the correction of the record nunc pro tunc; rather, the present

case involves the supplementation of a deficient record.

16
 I would further note that the majority ignores the

affirmative act inherent in Belew’s notice of filing

transcripts. In her notice of filing transcripts, Belew

specifically stated that only the transcripts for March 17 and

May 25, 2010, were filed. We have previously held that the

affirmative acts of counsel are not “oversight” or an

“inadvertent error” under Code § 8.01-428(B). Morgan v.

Russrand Triangle Assocs., L.L.C., 270 Va. 21, 26, 613 S.E.2d

589, 591 (2005). The argument that it was an oversight might

have been stronger had the notice of filing transcripts

mentioned the Missing Transcript. However, by failing to

include the Missing Transcript, Belew affirmatively represented

that she knew that it was not, in fact, filed.

Our holding in Wellmore Coal Corp. is particularly

applicable to the present case. In Wellmore Coal Corp., this

Court examined the applicability of Code § 8.01-428(B) to a

party’s failure to follow a Rule of Court. There, a foreign

attorney was admitted pro hac vice to represent appellant. Id.

at 281, 568 S.E.2d at 672. The initial notice of appeal was

signed only by the foreign attorney. Id. An amended notice of

appeal signed by both local counsel and the foreign attorney

was subsequently filed. Id. at 282, 568 S.E.2d at 672. When

the appellees filed a motion to dismiss the appeal on the basis

that the appellant failed to comply with Rule 1A:4 and the

17
amended notice of appeal was untimely pursuant to Rule 5:9(a),

the appellant argued that local counsel’s failure to sign “was

curable pursuant to Code § 8.01-428(B).” Id. In analyzing

whether Code § 8.01-428(B) applied, this Court explained that

Code § 8.01-428(B) only applies to clerical mistakes, and that

a party’s failure to follow a Rule of Court, “does not

constitute a clerical error contemplated by Code § 8.01-

428(B).” Id. at 283, 568 S.E.2d at 673 (emphasis added).

Thus, under Wellmore Coal Corp., Belew’s inattentiveness and

failure to follow Rule 5A:8(a) cannot be corrected using Code

§ 8.01-428(B).

Furthermore, by classifying Belew’s inattentiveness as a

clerical mistake arising from an oversight, the majority has,

in effect, negated the filing deadlines established in Rule

5A:8(a). Indeed, I believe that the majority’s holding runs

the risk of effectively negating all filing deadlines under the

Rules of Court, so long as a party claims that the failure was

due to inattentiveness.

In summation, our jurisprudence establishes that Code

§ 8.01-428(B) should only be utilized when there is an error or

omission in the record that is demonstrably contradicted by

other comments or documents and, therefore, causes the record

to fail to speak the truth. By contrast, Rule 5A:8(a) is used

when an appellant has failed to provide the Court with a record

18
sufficient for resolution of the appeal. The facts of this

case clearly fall into the latter category, not the former.

For all the foregoing reasons, I cannot join in the

majority’s opinion. Rather, I would find that the Missing

Transcript was untimely filed. Accordingly, I would affirm the

decision of the Court of Appeals.

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