Ghameshlouy v. Com.

Present: All the Justices

ERIC AMIR GHAMESHLOUY 1
OPINION BY
v. Record No. 091120 JUSTICE LAWRENCE L. KOONTZ, JR.
February 25, 2010
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

correctly determined that an appeal of a conviction under a

local ordinance should be dismissed because the defendant

failed specifically to name the locality as a party to the

appeal in his notice of appeal. The defendant acknowledges

that there was a defect in the notice of appeal, but contends

that the locality waived its objection to this defect because

an attorney representing the locality had made an appearance

and responded on the merits of the appeal in the Court of

Appeals. With one judge dissenting, a panel of the Court

determined that the deficiency in the notice of appeal

deprived the Court of “jurisdiction” over the case and, thus,

could not be waived by the subsequent appearance of the

locality.

1
Throughout the proceedings, the last name of the
appellant has been variously rendered as “Ghameshlouy,”
“Ghameshouly,” or “Ghamesouly.” For purposes of this appeal,
we will adopt the spelling as it appeared on the relevant
charging instrument, which counsel for the appellant confirms
is the proper spelling.
 BACKGROUND

Because the Court of Appeals did not address the merits

of the challenge to the conviction under the local ordinance,

we are concerned here only with the procedural status of the

appeal. Accordingly, we will confine our consideration to the

procedural history of the case, addressing only those aspects

of the merits necessary to place the proceedings in proper

context.

On February 24, 2007, officers of the City of Virginia

Beach Police Department responded to a report of a domestic

altercation at a local motel. In the course of their

investigation, the police entered a motel room occupied by

Eric Amir Ghameshlouy and a female. When asked by police to

identify himself, Ghameshlouy gave evasive and conflicting

answers concerning both his name and age. The officers

frisked Ghameshlouy and found two identification cards that

showed his true name and date of birth. The officers advised

Ghameshlouy that he was being arrested for giving false

identity information to police, subsequently charging him by

warrant with a violation of Virginia Beach City Code § 23-7.1

(hereinafter, “VBCC § 23-7.1”), which provides:

It shall be unlawful and a Class 1 misdemeanor
for any person at a public place or place open to the
public to refuse to identify himself by name and
address at the request of a uniformed police officer
or of a properly identified police officer not in

2
 uniform, or to provide false information in response
to such a request, if the surrounding circumstances
are such as to indicate to a reasonable man that the
public safety requires such identification.

In a search incident to this arrest, police discovered a

bag containing a white powder, later identified as cocaine, on

Ghameshlouy’s person. Consequently, Ghameshlouy also was

charged by a felony warrant with possession of cocaine in

violation of Code § 18.2-250 and was subsequently indicted for

that offense.

Ghameshlouy was tried on the VBCC § 23-7.1 violation in

the City of Virginia Beach General District Court on April 6,

2007. He was convicted and sentenced to 180 days in jail with

170 days suspended on condition of 2 years probation.

Ghameshlouy noted his appeal from this conviction to the

circuit court.

On April 30, 2007, the Circuit Court of the City of

Virginia Beach conducted a hearing on a motion to suppress the

cocaine discovered on Ghameshlouy’s person during the search

incident to his arrest. In briefing his motion to suppress,

Ghameshlouy contended that the officers’ warrantless entry

into the motel room was unlawful because they had no probable

cause to believe that a crime was being committed in the room

and lacked a sufficient basis for believing that they could

enter the room under a “community caretaker” function, since

3
there was no evidence that the female had been the victim of a

domestic assault. Ghameshlouy further argued that even if the

officer’s entry into the motel room was lawful, his arrest

under VBCC § 23-7.1 was improper because a motel room was not

“a public place or place open to the public.” The circuit

court denied the motion to suppress.

On July 24, 2007, in a proceeding before the circuit

court, Thomas M. Murphy, a Deputy Commonwealth’s Attorney in

the Office of the Commonwealth’s Attorney for the City of

Virginia Beach, was acknowledged by the court as “present for

the Commonwealth.” It is not disputed, however, that Murphy

was also representing the City in prosecuting the appeal of

the local ordinance violation. See Code § 15.2-1627(B).

Murphy informed the court that a conditional plea agreement

had been reached covering the possession of cocaine charge and

other state charges arising from a separate, unrelated

incident, as well as a probation violation. Although the

agreement originally also covered the VBCC § 23-7.1 offense,

this language had been struck from the agreement prior to its

presentation to the court. The plea agreement was styled

“Commonwealth of Virginia v. Eric Amir Ghameshlouy.”

After accepting the plea to the state charges, the

circuit court conducted a bench trial on the VBCC § 23-7.1

charge on stipulated evidence. The sole issue before the

4
court was whether the motel room constituted “a public place

or place open to the public” for purposes of applying the

ordinance. Finding that a motel room was a public place

because “[a]nyone can go there and rent a room if they would

like,” the circuit court found Ghameshlouy guilty of failing

to identify himself to police and sentenced him to 12 months

in jail with all time suspended. An order of conviction for

violation of VBCC § 23-7.1, styled “CITY v. ERIC AMIR

GHAMESHLOUY,” was entered on July 30, 2007. A separate order

of conviction on the state offenses, styled “COMMONWEALTH OF

VIRGINIA v. ERIC AMIR GHAMESHLOUY” was entered on August 1,

2007.

On July 31, 2007, Ghameshlouy filed a notice of appeal in

the record of the VBCC § 23-7.1 case, listing in its caption

the circuit court docket number for that case as well as those

assigned to each of the state law offenses for which he had

entered guilty pleas. However, the caption named only the

Commonwealth of Virginia as the prosecuting authority, and

also named only the Commonwealth as the appellee in the Rule

5A:6(d) certificate at the end of the notice of appeal. In

the body of the notice of appeal, in addition to identifying

his conviction for possession of cocaine by conditional plea

agreement after the denial of his motion to suppress,

Ghameshlouy further indicated his intention to appeal the

5
“final judgment of the Circuit Court of the City of Virginia

Beach, rendered . . . on July 24, 2007” in which Ghameshlouy

was convicted of “the charge of refusing to provide

identification to a police officer, a violation of [the]

Virginia Beach municipal code.” (Emphasis added.) However,

the notice of appeal did not reference the July 30, 2007 order

of conviction concerning the VBCC § 23-7.1 offense. 2

In his petition for appeal in the Court of Appeals,

Ghameshlouy acknowledged that the conviction for failure to

identify was under the local ordinance. Nonetheless, the Rule

5A:12(c) certificate at the conclusion of the petition states

that “the appellee is the Commonwealth of Virginia.” Murphy,

the Deputy Commonwealth’s Attorney, filed a brief in

opposition to Ghameshlouy’s petition for appeal. Murphy

indicated in the certificate at the conclusion of the brief in

opposition that he was appearing as “counsel for the

Commonwealth of Virginia.” He did not raise the issue of the

City not having been joined as a party to the appeal with

respect to the VBCC § 23-7.1 conviction, but instead addressed

the merits of the appeal.

2
Ghameshlouy filed an identical notice of appeal in the
record of the state cocaine possession conviction on August 2,
2007.

6
 Although both the petition for appeal and the brief in

opposition were styled in accord with the caption of the

notice of appeal denoting the Commonwealth as the sole

appellee, following a review by a judge of the Court, the

Court of Appeals entered a per curiam order refusing the

petition for appeal in which the “appellees” were denoted in

the caption of the order as “Commonwealth of Virginia and City

of Virginia Beach.” The record does not disclose the reason

this change in the style of the case was made. 3

Ghameshlouy requested a review of his petition by a

three-judge panel, which in an order dated June 10, 2008

refused the appeal as to the suppression issue related to the

state cocaine conviction, but granted an appeal on the

challenge to the VBCC § 23-7.1 conviction. This order also

styled the appellees as “Commonwealth of Virginia and City of

Virginia Beach” and was served on both the Virginia Beach

3
Although this Court will in appropriate circumstances
change a style of a case to correct an error in form, see,
e.g., McCloud v. Commonwealth, 269 Va. 242, 242 n.*, 609
S.E.2d 16, 16 n.* (2005), or to correct an error in the
spelling of a party’s name, see, e.g., Smit v. Shippers’
Choice of Virginia, Inc., 277 Va. 593, 593 n.1, 674 S.E.2d
842, 842, n.1 (2009), in doing so we indicate the reason for
the change. Nevertheless, Ghameshlouy does not rely upon that
sua sponte change of the style of the case as the basis upon
which the Court of Appeals acquired jurisdiction over his
appeal.

7
Commonwealth’s Attorney and the Office of the Attorney

General.

On June 18, 2008, Ghameshlouy filed his opening brief in

the Court of Appeals, reasserting his contention that a motel

room is not “a public place or a place open to the public.”

Despite the modification of the style of the case by the Court

of Appeals in its orders, in the caption of his brief and in

the certificate at its end Ghameshlouy continued to identify

the “Commonwealth of Virginia” as the appellee and further

averred that service had been made upon the Assistant Attorney

General representing the Commonwealth. 4

On August 6, 2008, the Office of the Attorney General, on

behalf of the Commonwealth, filed a motion in the Court of

Appeals to amend the caption of the appeal in which it averred

that “[t]he proper appellee is now the City of Virginia Beach

and the Commonwealth’s Attorney from that jurisdiction has

agreed to become co-counsel in this matter.” Noting that

“upon an appeal to the Supreme Court the appellant could again

challenge his [cocaine possession] conviction under the state

statute,” the Attorney General stated that the Commonwealth

4
In subsequent proceedings, the City did not raise the
issue of Ghameshlouy’s failure to serve a copy of the opening
brief on all opposing counsel as required by Rule 5A:19(f).

8
“should remain involved [in the appeal] at this stage.” 5

Accordingly, the Attorney General “request[ed] that the

caption of this case be amended to add the City of Virginia

Beach as an appellee.” By letter dated August 21, 2008, the

Clerk of the Court of Appeals advised the Attorney General

that “upon review of the caption of this case and the orders

entered therein, the City of Virginia Beach is listed as an

appellee. Accordingly, the Court will not take any action on

[the Commonwealth’s motion].”

On August 12, 2008, the Attorney General and the

Commonwealth’s Attorney for the City of Virginia Beach filed a

joint brief styled as the “Brief for the Commonwealth,” but

captioned in accord with the style of the case in the order

granting the appeal giving both the Commonwealth and the City

as appellees. The brief made no objection to Ghameshlouy’s

failure to include the City as an appellee in the notice of

appeal, addressing only the merits of the challenge to the

VBCC § 23-7.1 conviction.

On September 26, 2008, the Attorney General filed a

motion to dismiss the appeal, contending for the first time

5
While it was possible that the Attorney General would
have been required to defend an appeal of the state conviction
in this Court, it is equally clear that the Attorney General
had no obligation, or legal standing, to represent the
locality in the appeal of the conviction under VBCC § 23-7.1.
See Code § 2.2-511(A).

9
that because Ghameshlouy failed to expressly name the City, an

indispensable party, as an appellee in the notice of appeal

filed in the record of the VBCC § 23-7.1 conviction, the

appeal of that conviction was barred for lack of jurisdiction.

Ghameshlouy, at the direction of the Court of Appeals, filed a

response to the motion in which he contended that the City had

waived its objection to the defect in the notice of appeal

because it had made a general appearance in the matter,

through the Commonwealth’s Attorney, by responding to the

petition for appeal on the merits of his challenge to his VBCC

§ 23-7.1 conviction and by joining the Commonwealth’s opening

brief.

Following oral argument before a three-judge panel of the

Court of Appeals, a majority of the panel determined that the

appeal was barred for lack of jurisdiction and dismissed

Ghameshlouy’s appeal. Ghameshlouy v. Commonwealth, 54 Va.

App. 47, 56, 675 S.E.2d 854, 858 (2009). The majority of the

panel held that Ghameshlouy’s failure to name the City as an

appellee deprived the Court of jurisdiction over the appeal

with respect to the local ordinance issue and that the

doctrine of waiver could not be applied to provide the Court

with that jurisdiction. Id. at 51-56, 675 S.E.2d at 856-58.

The dissenting judge was of opinion that because the notice of

appeal was timely filed in this case, the failure to

10
specifically name the City as an appellee was a defect that

could be waived by the voluntary appearance of the City in the

appellate court. Id. at 61-78, 675 S.E.2d at 860-869 (Haley,

J. dissenting). Finding that the City had waived its

objection to this defect in the notice of appeal by failing to

raise the issue at the petition stage and then joining in the

Commonwealth’s brief on the merits of the granted appeal, the

dissenting judge would have reached the merits and reversed

Ghameshlouy’s conviction, concluding that a motel room is not

a “public place or place open to the public.” Id. at 86-87,

675 S.E.2d at 873 (Haley, J. dissenting).

Ghameshlouy filed a notice of appeal in the Court of

Appeals seeking to challenge this judgment and the denial of

his petition for appeal as to the cocaine possession charge.

By an order dated September 11, 2009, we awarded Ghameshlouy

an appeal, limited to the challenge of his conviction on the

VBCC § 23-7.1 conviction and the Court of Appeals’ dismissal

of the appeal on that issue. In that order, we directed the

City to file a brief “address[ing] whether it was a party to

the appeal of this case in the Court of Appeals.”

DISCUSSION

The resolution of this appeal requires us to once again

plumb the murky depths of the sea of “jurisdiction.” As aptly

noted in the dissent below, “ ‘[j]urisdiction is a word of

11
many, too many, meanings.’ ” Id. at 57, 675 S.E.2d at 859

(quoting United States v. Vanness, 318 U.S. App. D.C. 95, 85

F.3d 661, 663 n.2 (D.C. Cir. 1996)).

In this context, we recently observed, in Board of

Supervisors v. Board of Zoning Appeals, 271 Va. 336, 343-44 &

n.2, 626 S.E.2d 374, 379 & n.2 (2006), that subject matter

jurisdiction, perhaps best understood as the “potential”

jurisdiction of a court, is the authority granted to it by

constitution or statute over a specified class of cases or

controversies, and becomes “active” jurisdiction, the power to

adjudicate a particular case upon the merits, only when

various elements are present.

Those elements are subject matter jurisdiction,
which is the authority granted through constitution
or statute to adjudicate a class of cases or
controversies; territorial jurisdiction, that is,
authority over persons, things, or occurrences
located in a defined geographic area; notice
jurisdiction, or effective notice to a party or if
the proceeding is in rem seizure of a res; and the
other conditions of fact must exist which are
demanded by the unwritten or statute law as the
prerequisites of the authority of the court to
proceed to judgment or decree. All these elements
are necessary to enable a court to proceed to a
valid judgment.

Id. at 343-44, 626 S.E.2d at 379 (internal quotation

marks, citations and footnote omitted).

In an effort to achieve further clarity, we begin our

discussion of the jurisdiction issue raised in this appeal by

12
identifying those aspects of the jurisdiction of the Court of

Appeals with which we are not here concerned. First, we are

not concerned with the statutory jurisdiction of the Court of

Appeals to consider the subject matter of this appeal.

Without question, the Court of Appeals has the authority,

potential jurisdiction, to consider an appeal of any

conviction in the circuit courts of this Commonwealth of a

misdemeanor offense, whether brought pursuant to a state

statute or a local ordinance. Code § 17.1-406(A). Nor are we

concerned with whether the Court could exercise personal

jurisdiction over the City of Virginia Beach, as the

prosecuting authority on the VBCC § 23-7.1 conviction. It is

well established that a general appearance by a party confers

personal jurisdiction, and the City unquestionably made such

an appearance in the Court of Appeals. Lyren v. Ohr, 271 Va.

155, 159, 623 S.E.2d 883, 885 (2006); Gilpin v. Joyce, 257 Va.

579, 581, 515 S.E.2d 124, 125 (1999); Vaughn v. Vaughn, 215

Va. 328, 329, 210 S.E.2d 140, 142 (1974) (per curiam).

Rather, the issue with which we are concerned is whether

Ghameshlouy’s appeal of his VBCC § 23-7.1 conviction was

properly before the Court based upon the July 31, 2007 notice

of appeal. That is, did the filing of the July 31, 2007

notice of appeal cause the potential jurisdiction of the Court

of Appeals over this type of appeal to ripen into active

13
jurisdiction over the appeal of that specific case. With that

issue in mind, we turn now to the question of what is required

for an appellate court to acquire active jurisdiction over a

case that falls within its potential jurisdiction.

When a circuit court renders a judgment that provides

complete relief, leaving nothing to be done except for the

superintendence of the judgment, that judgment is final and

subject to being appealed. Although the circuit court’s

jurisdiction over the case extends 21 days beyond the entry of

the final order, Rule 1:1, an appellate court will acquire

jurisdiction over the case if a party aggrieved of the

judgment, who was properly before the circuit court, notes an

appeal of the judgment in the circuit court in accord with the

rules of the appellate court having jurisdiction over the

subject matter of the case. In the instance of a criminal

conviction, other than a conviction for capital murder in

which a sentence of death is imposed, the Court of Appeals has

initial appellate jurisdiction, and the procedure for noting

the appeal in the circuit court is controlled by this Court’s

Rule 5A:6.

As relevant to our resolution of the issue raised in this

appeal, Rule 5A:6 provides:

(a) Filing Deadline; Where to File – No appeal
shall be allowed unless, within 30 days after the
entry of final judgment . . . counsel files with the

14
 clerk of the trial court a notice of appeal, and at
the same time mails or delivers a copy of such
notice to all opposing counsel and the Clerk of the
Court of Appeals . . .

(d) Certificate – The appellant shall include
with the notice of appeal a certificate stating:

(1) the names . . . of all appellants and
appellees, [and] the names . . . of counsel for each
party, . . .

(2) that a copy of the notice of appeal has
been mailed or delivered to all opposing counsel.

(Emphasis added.)

This Court has held that filing a timely notice of appeal

is a mandatory prerequisite to an appellate court acquiring

jurisdiction over a case. Super Fresh Food Mkts. of Va. v.

Ruffin, 263 Va. 555, 563, 561 S.E.2d 734, 739 (2002); School

Board of City of Lynchburg v. Caudill Rowlett Scott, Inc., 237

Va. 550, 556, 379 S.E.2d 319, 323 (1989); Vaughn, 215 Va. at

329-330, 210 S.E.2d at 142. Likewise, the Court of Appeals

has recognized that strict adherence to the time requirement

of Rule 5A:6 is necessary in order for the Court to acquire

jurisdiction over a case. Johnson v. Commonwealth, 1 Va. App.

510, 512, 339 S.E.2d 919, 920 (1986).

Strict enforcement of the time requirements of the rules

governing the noting of appeal is necessary because

“[l]itigation is a serious and harassing matter, and the right

to know when it is ended is a valuable right.” Avery v.

15
County School Bd., 192 Va. 329, 333, 64 S.E.2d 767, 770

(1951). Thus, dismissal of an untimely appeal is not merely a

mechanical application of a technical rule to deprive a

litigant of the right to appeal, rather “[t]he purpose of the

specific time limit [for filing a notice of appeal] is not to

penalize the appellant but to protect the appellee.” Id.

While the filing of a timely notice of appeal is a

prerequisite to an appellate court’s obtaining and exercising

jurisdiction over a case, not every requirement of the rule

prescribing when and how a notice of appeal is to be prepared

and filed implicates the court’s initial acquisition of

jurisdiction. Thus, we have never required that a notice of

appeal be precise, accurate, and correct in every detail

before the appellate court can acquire jurisdiction over the

case in which the notice is filed. To the contrary, both this

Court and the Court of Appeals have consistently held that

most statutory and rule-based procedural prerequisites for the

valid exercise of jurisdiction by a court may be waived, even

when couched in mandatory terms by the language of the statute

or rule. See, e.g., Porter v. Commonwealth, 276 Va. 203,

236-37, 661 S.E.2d 415, 431 (2008)(holding that statutory

requirements for effecting granted motions for change of venue

were not jurisdictional and were waived); Jay v. Commonwealth,

275 Va. 510, 520, 659 S.E.2d 311, 317 (2008) (holding that a

16
defendant’s failure to comply with Rule 5A:20(e) did not

deprive Court of Appeals of jurisdiction); State Water Control

Bd. v. Crutchfield, 265 Va. 416, 423-24, 578 S.E.2d 762, 766

(2003) (holding that failure to have a copy of the petition

for an appeal under the Administrative Process Act served on a

party did not divest the circuit court of jurisdiction);

Nelson v. Warden, 262 Va. 276, 285, 552 S.E.2d 73, 77-78

(2001) (holding that notice requirement of Code § 16.1-263(A)

for valid transfer of jurisdiction over defendant from

juvenile court to circuit court for trial as an adult was

subject to waiver); Riner v. Commonwealth, 40 Va. App. 440,

452-53, 579 S.E.2d 671, 677-78 (2003), aff’d, 268 Va. 296, 601

S.E.2d 555 (2004) (holding that Rule 5A:12 was not

jurisdictional and, thus, did not bar the Court from granting

an appellant leave to amend and enlarge the questions

presented in his petition for appeal).

In Johnson the Court of Appeals held that while the time

limit for filing the notice of appeal under Rule 5A:6(a) was

mandatory and, thus, jurisdictional, failing to file a copy of

the notice with the Clerk of the Court of Appeals was merely a

procedural error, and did not deprive the Court of

jurisdiction over the case. Johnson, 1 Va. App. at 512-13,

339 S.E.2d at 920-21. Similarly, in M.G. v. Albemarle County

Department of Social Services, 41 Va. App. 170, 177-78, 583

17
S.E.2d 761, 764-65 (2003), the Court held that a failure to

strictly adhere to the certification of notice to other

parties requirement of Rule 5A:6(d) would not bar the Court

from obtaining jurisdiction over the appeal where other

aspects of the record showed that the party was advised that a

timely notice of appeal had been filed. But cf. Watkins v.

Fairfax County Dep't of Family Services, 42 Va. App. 760, 774,

595 S.E.2d 19, 26 (2004) (holding that indispensable party

must be named in notice of appeal to properly perfect an

appeal).

More recently in Woody v. Commonwealth, 53 Va. App. 188,

197, 670 S.E.2d 39, 44 (2008), the Court of Appeals held that

where the appellant was convicted under a local ordinance for

driving under the influence, and he failed to include the

locality in the caption or certificate of his notice of appeal

of that conviction, the Court never acquired jurisdiction over

the appeal. In reaching this conclusion, the Court of Appeals

rejected the appellant’s argument that service of the notice

of appeal on the Commonwealth’s Attorney, who, as in this

case, had prosecuted the local ordinance offense in the

circuit court, “effectively joined the [locality] as a party.”

Id. at 197-98, 670 S.E.2d at 44. In doing so, the Court noted

that the locality “has not appeared as a party on any pleading

filed in this Court. It has not filed a brief in opposition

18
to Woody’s petition for appeal nor a brief in opposition to

Woody’s opening brief. In fact, there is no evidence in the

record that the [locality] is even aware that this appeal is

pending. Thus, the argument that the opposing party is fully

aware of the issues is completely unsupported by the facts.”

Id. at 199 n.7, 670 S.E.2d at 45 n.7. A review of the records

of the Court of Appeals confirms that, unlike the present

case, the Commonwealth’s Attorney for the locality under whose

ordinance Woody was convicted did not make any appearance in

the Court of Appeals, either on behalf of the Commonwealth or

the locality, prior to the granting of Woody’s appeal, after

which point only the Attorney General appeared on behalf of

the Commonwealth. 6 Id. at 194 n.3, 670 S.E.2d at 42 n.3.

Relying upon Woody, the majority of the panel of the

Court of Appeals below found that Ghameshlouy’s failure to

identify the City as an appellee in the notice of appeal was a

“ ‘jurisdictional defect that requires dismissal of the

6
In appealing the judgment of the Court of Appeals to
this Court, Woody did not reassert the argument that the
locality had actual notice and, thus, was a de facto party to
the appeal. Rather, he asserted that the circuit court record
supported the contention that the Commonwealth, not the
locality, had been the prosecuting authority on the DUI. We
refused Woody’s petition for appeal. Woody v. Commonwealth,
Record No. 090229 (May 22, 2009) (order). The facts in Woody,
and the argument made in this Court seeking to overturn the
dismissal of the appeal by the Court of Appeals, are nearly
analogous with those in Roberson v. Commonwealth, 279 Va. ___,
___ S.E.2d ___ (2010) (this day decided).

19
appeal.’ ” Ghameshlouy, 54 Va. App. at 51, 675 S.E.2d at 856

(quoting Woody, 53 Va. App. at 199, 670 S.E.2d at 45). The

majority further noted that, as in Woody, which had involved a

simultaneous trial under the local ordinance and a state law

violation for refusal to submit to a breath or blood test in

violation of Code § 18.2-268.3, it was not sufficient that the

City effectively had notice of the appeal because the

Commonwealth’s Attorney, who had been served with the notice

of appeal, had represented both the Commonwealth and the City

in the simultaneous prosecutions of Ghameshlouy for the state

and local offenses. Id. at 51-52 & nn.2 and 3, 675 S.E.2d at

856 & nn.2 and 3.

The majority went on to find that “this jurisdictional

defect was not waived, as [Ghameshlouy] contends, as a result

of the Commonwealth moving this Court to amend the caption of

the case by adding the City of Virginia Beach as an appellee,

and the City of Virginia Beach later purportedly joining in

the Commonwealth's brief, addressing the merits of the

misdemeanor conviction.” Id. at 54, 675 S.E.2d at 857. The

majority reasoned that because the defect in the notice of

appeal was, in its view, “jurisdictional,” Ghameshlouy never

filed a valid notice of appeal with respect to the VBCC § 23-

7.1 conviction and, thus, there was no case before the Court

in which the City’s appearance would constitute such a waiver.

20
Id. The majority thus concluded that the City’s appearance

before the Court was a nullity because there was “no authority

for a third party to unilaterally participate in a pending

appeal in this Court or the Virginia Supreme Court . . . .

For a third party to be recognized as a party to a pending

appeal, such party must obtain the Court’s approval upon the

party’s motion to intervene,” which had not been done in this

case. Id. at 55, 675 S.E.2d at 858.

The essential question in this case, however, is whether

the notice of appeal timely filed by Ghameshlouy on July 31,

2007, although defective, was sufficient to cause the

potential jurisdiction of the Court of Appeals to consider

such appeals to ripen into active jurisdiction over this

specific case. The notice of appeal filed by Ghameshlouy

identified the conviction which he sought to appeal by its

docket number in the circuit court, and by further indicating

that it was an appeal from a “final judgment of the Circuit

Court of the City of Virginia Beach, rendered . . . on July

24, 2007” in which Ghameshlouy was convicted of “the charge of

refusing to provide identification to a police officer, a

violation of [the] Virginia Beach municipal code.” (Emphasis

added.) Moreover, since a court “ ‘speaks only through its

orders,’ ” Jefferson v. Commonwealth, 269 Va. 136, 139, 607

S.E.2d 107, 109 (2005) (citation omitted), at the time this

21
notice of appeal was filed the only judgment that had been

rendered by the circuit court in the July 24, 2007 trial was

on the local ordinance violation, as the sentencing order

confirming the plea agreement had yet to be entered on the

state felony charges. Thus, while the notice of appeal is not

a model of clarity, it was sufficient on its face to identify

the conviction under VBCC § 23-7.1 as the case being appealed,

without reference to any other document in the record. This

is all that is required for the Court of Appeals to obtain

jurisdiction over the case.

The Court of Appeals having obtained jurisdiction over

the case, the defect in the notice of appeal in not naming the

proper appellee, which otherwise would have justified

dismissal of the appeal, was potentially subject to waiver.

That waiver clearly occurred by the subsequent actions of the

City and Ghameshlouy’s assertion of that waiver when the issue

was raised for the first time by the Commonwealth after the

appeal had been briefed by the Commonwealth and the City

jointly. Accordingly, we hold that the Court of Appeals erred

in dismissing Ghameshlouy’s appeal of his VBCC § 23-7.1

conviction on the ground that it did not have jurisdiction

over the case or the proper appellee.

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 CONCLUSION

For these reasons, we will reverse the judgment of the

Court of Appeals dismissing Ghameshlouy’s appeal. Because the

Court of Appeals did not reach the merits of the issue whether

the circuit court erred in ruling that a motel room was a

“public place or place open to the public” for purposes of

applying VBCC § 23-7.1, we will not address that issue here,

but will remand the case to the Court of Appeals for further

proceedings consistent with the views expressed in this

opinion. Upon remand, the style of the case shall be amended

to reflect that the City of Virginia Beach is the appellee.

Reversed and remanded.

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