Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Lacy and Koontz, S.JJ. ∗
DAVID SMITH
v. Record No. 101357 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA MARCH 4, 2011
FROM THE COURT OF APPEALS OF VIRGINIA
In this case we consider whether dismissal is the proper
disposition of an appeal in which a transcript necessary for
resolution of the issue raised on appeal was not timely filed.
BACKGROUND
On October 4, 2007, David Smith was indicted by the Grand
Jury in the Circuit Court of the City of Portsmouth for one
count of abduction with intent to defile, Code §§ 18.2-48 and
18.2-10, three counts of forcible sodomy, Code § 18.2-67.1, four
counts of use of a firearm in the commission of a felony, Code
§ 18.2-53.1, and one count of conspiracy, Code §§ 18.2-22 and
18.2-10. Following a hearing, the trial court denied Smith’s
motion to suppress certain evidence. Smith then entered into a
conditional plea agreement in which he pled guilty to one count
of simple abduction, Code § 18.2-47(A), and one count of
forcible sodomy, Code § 18.2-67.1, reserving the right to appeal
the trial court’s denial of his suppression motion. The trial
∗
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
court accepted the plea agreement, sentenced Smith to concurrent
terms of five years’ imprisonment for each offense with one year
and four months suspended from each sentence and upon the
Commonwealth’s motion, entered an order of nolle prosequi for
the remaining indictments.
Smith filed a timely appeal to the Court of Appeals
assigning error to the trial court’s denial of his motion to
suppress. However, the transcript of the suppression hearing
was not filed in the circuit court until eight days beyond the
time prescribed by Rule 5A:8. The Court of Appeals notified
Smith’s counsel that the transcript of the suppression hearing
was not timely filed. In response, Smith filed a motion to
dismiss his appeal for failure to file a necessary and
indispensable transcript arguing that the failure to file the
transcript was a jurisdictional defect requiring dismissal. 1
Following oral arguments, a majority of a panel of the Court of
Appeals denied Smith’s motion to dismiss, determined that Smith
waived the issue he presented on appeal because he failed to
1
Smith also asserted that a disposition other than
dismissal would have the collateral effect of denying him his
statutory remedy for obtaining a belated appeal under Code
§ 19.2-321.1 because that remedy is based on the “dismissal” of
an appeal for failure to comply with certain procedural
requirements. The interpretation of Code § 19.2-321.1 was not
at issue in the Court of Appeals nor is it at issue here;
however, we note that the disposition of this case does not
impact Smith’s ability to pursue a belated appeal through the
habeas corpus process.
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timely file a transcript which was indispensable to the
resolution of that issue, and, consequently, affirmed Smith’s
convictions. Smith v. Commonwealth, 56 Va. App. 351, 363, 693
S.E.2d 765, 771 (2010). Smith appealed, asserting that the
Court of Appeals erred in affirming his convictions rather than
dismissing his appeal.
DISCUSSION
Smith argues that dismissing the appeal is the correct
disposition in this case because the lack of an indispensable
transcript prevented the appellate court from acting on the
appeal and therefore the court was without jurisdiction to
consider the appeal. If a court does not have jurisdiction over
an appeal, Smith asserts, the appeal must be dismissed. Smith
also argues that dismissal of his appeal for failure to file an
indispensable transcript is consistent with precedent of this
Court and the Court of Appeals. See e.g., Dudley v. Florence
Drug Co., 204 Va. 533, 535, 132 S.E.2d 465, 467 (1963); Smith v.
Commonwealth, 32 Va. App. 766, 772, 531 S.E.2d 11, 14-15 (2000).
We agree with Smith that if an appellate court does not have
jurisdiction over an appeal, the appeal must be dismissed.
However, we disagree with Smith both as to his characterization
of the jurisdiction of an appellate court and his reliance on
prior cases of this Court and the Court of Appeals as binding
authority for the issue presented in this appeal.
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The term jurisdiction is “a word of many, too many,
meanings.” Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689
S.E.2d 698, 702 (2010) (internal quotation marks and citations
omitted). While the term often is used to refer generally to a
court’s authority and ability to exercise control over a case,
there are different types of jurisdiction encompassing separate
and distinct legal concepts. Subject matter jurisdiction is the
authority vested in a court by constitution or statute to
adjudicate certain categories of disputes. Morrison v. Bestler,
239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). Without this type
of jurisdiction a court’s action is a nullity and is subject to
challenge at any time. Id. at 170, 387 S.E.2d at 755-56.
Subject matter jurisdiction standing alone is, however,
only the “potential” jurisdiction of a court over the subject
matter. The court acquires the “active” jurisdiction to
adjudicate a matter only when certain additional elements are
present. Ghameshlouy, 279 Va. at 388-89, 689 S.E.2d at 702-03.
Some of the other elements governing the ability of a court to
exercise its subject matter jurisdiction in a particular case
are contained in the Rules of the Supreme Court of Virginia
prescribed and adopted by this Court pursuant to Code § 8.01-3.
In Ghameshlouy, we identified compliance with the appellate rule
requiring the timely filing of a notice of appeal, Rule 5A:6, as
an element which must be present to transform an appellate
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court’s potential jurisdiction to proceed to judgment into
active jurisdiction to do so. Id. at 390-91, 689 S.E.2d at 703-
04. This rule demands mandatory compliance and is “a
prerequisite to an appellate court's obtaining and exercising
jurisdiction over a case.” Id. at 391, 689 S.E.2d at 704.
Similarly, noncompliance with the rule involving the timely
filing of a petition for appeal and including assignments of
error in that petition deprive the appellate court of active
jurisdiction over the appeal. Rule 5:17. Not all procedural
rules, however, are treated as mandatory or jurisdictional,
carrying a consequence of dismissal for noncompliance. Jay v.
Commonwealth, 275 Va. 510, 659 S.E.2d 311 (2008), involved the
dismissal of an appeal by the Court of Appeals for noncompliance
with the rule requiring presentation of arguments on brief, Rule
5A:20(e). We reversed the Court of Appeals’ decision, holding
that, by dismissing the appeal rather than denying it, the Court
of Appeals erroneously rendered the rule jurisdictional. Id. at
517, 659 S.E.2d at 315. Noncompliance with that rule may have
prevented the Court of Appeals from resolving the issue due to
waiver, but it did not defeat the active jurisdiction of the
Court of Appeals to proceed to judgment in the appeal.
In our view, the timely filing requirement of Rule 5A:8,
like the rule at issue in Jay, is not a mandatory procedural
rule that is necessary to enable the potential jurisdiction of
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the appellate court to become active jurisdiction and proceed to
a valid decree or disposition. The content and application of
Rule 5A:8 demonstrates that there is no requirement that a
transcript be filed in every appeal. The plain language of the
rule does not require the filing of a transcript in order to
proceed with an appeal. Not only does the rule allow the filing
of a statement of facts in place of a transcript, cases may
often be decided without the filing of a transcript. Haugen v.
Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 32, 645
S.E.2d 261, 264 (2007); City of Richmond v. Randall, 215 Va.
506, 508, 211 S.E.2d 56, 58 (1975); Smyth v. Midgett, 199 Va.
727, 729, 101 S.E.2d 575, 577-78 (1958). Elements required to
ripen the appellate court’s potential jurisdiction into active
jurisdiction are elements that must be applicable in every
appeal; they cannot be selectively applied depending on the
issues presented in the appeal.
Furthermore, many cases contain issues that are not
resolved on the merits in the appeal because of noncompliance
with the appellate rules, including the rule relating to the
filing of transcripts. Examples include the failure to present
argument on an assigned error, the failure to proffer certain
excluded testimony that is the subject of an appeal, or the
failure to include a rejected jury instruction. In these
circumstances, we consider the issue waived and resolve the case
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on the basis of those issues properly presented to us. See
e.g., Andrews v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237,
249 (2010); Commonwealth Transp. Comm’r v. Target Corp., 274 Va.
341, 348, 650 S.E.2d 92, 96 (2007); Wyche v. Commonwealth, 218
Va. 839, 842, 241 S.E.2d 772, 774 (1978); Paddock v. Mason, 187
Va. 809, 812, 48 S.E.2d 199, 200 (1948). We do not treat the
absence of these elements as defeating our ability to exercise
active jurisdiction over the appeal, even though they may
preclude us from resolving the issue. Indeed, included within
appellate review of a case is consideration of whether an issue
is defaulted or waived on appeal.
Finally, Smith’s argument that his appeal should be
dismissed because in prior cases the Court of Appeals and this
Court have dismissed appeals for failure to timely file an
indispensable transcript is unpersuasive. There is no question
that there are cases from this Court and the Court of Appeals
that have referred to or directed the dismissal of an appeal
because a necessary transcript was not properly before the
court. See e.g., Towler v. Commonwealth, 216 Va. 533, 535, 221
S.E.2d 119, 121 (1976); Fearon v. Commonwealth, 211 Va. 256, 257
176 S.E.2d 921, 922 (1970); Crum v. Udy, 206 Va. 880, 881, 146
S.E.2d 878, 879 (1966); Dudley, 204 Va. at 535, 132 S.E.2d at
467; Smith, 32 Va. App. at 772, 531 S.E.2d at 14-15; Williams v.
Commonwealth, 7 Va. App. 516, 519, 375 S.E.2d 364, 366 (1988);
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Barrett v. Barrett, 1 Va. App. 378, 380, 339 S.E.2d 208, 209-10
(1986). However, these cases do not have precedential value or
application in this case because the proper disposition of an
appeal under the circumstances presented here was not an issue
in any case Smith cites. Furthermore, in other cases, the
failure to file an indispensable transcript resulted in waiver
of the issue associated with the transcript. See e.g., Lloyd v.
Kime, 275 Va. 98, 107-08 & n.*, 654 S.E.2d 563, 568-69 & n.*
(2008); Woodfin v. Commonwealth, 236 Va. 89, 97-98, 372 S.E.2d
377, 382 (1988); Lawrence v. Nelson, 200 Va. 597, 599, 106
S.E.2d 618, 620 (1959); Shiembob v. Shiembob, 55 Va. App. 234,
246, 685 S.E.2d 192, 198-99 (2009).
In summary, the failure to timely file the transcript in
this case did not deprive the Court of Appeals of its active
jurisdiction to proceed to judgment in the appeal and there is
no error in the Court of Appeals’ judgment affirming Smith’s
convictions. Smith waived his challenge to the trial court’s
denial of his motion to suppress certain evidence because he
failed to timely file a transcript necessary to resolve the
issue. Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
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