Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
COMMONWEALTH OF VIRGINIA
PER CURIAM
v. Record No. 051000 January 13, 2006
DEMETRIUS L. NEELY
FROM THE COURT OF APPEALS OF VIRGINIA
Demetrius L. Neely was convicted, on his guilty plea, of
possession of cocaine in the Circuit Court of the City of
Portsmouth on December 1, 1997. The circuit court imposed a
sentence of two years in prison, but suspended the entire
sentence and ordered supervised probation. While on
probation, Neely was arrested on unrelated federal charges and
his probation officer initiated revocation proceedings. Neely
pled guilty to the federal charges and was sentenced to
confinement in a federal correctional institution.
Thereafter, the circuit court revoked his suspended sentence
and ordered his original two-year sentence to be served, to
run "consecutively with all other sentences.”
Almost four years later, Neely, still in federal custody,
filed a motion in the circuit court seeking a modification of
his two-year sentence, claiming that a detainer placed against
him by the Virginia authorities interfered with his release
from federal custody. The circuit court ruled that it had no
jurisdiction to consider Neely’s motion because of the time
limitation imposed by Rule 1:1.
Neely appealed to the Court of Appeals. A divided panel,
by a published opinion, held that the circuit court retained
jurisdiction to entertain Neely’s motion pursuant to Code
§ 19.2-303, reversed the order of the circuit court and
remanded the case. Neely v. Commonwealth, 44 Va. App. 239,
604 S.E.2d 733 (2004). In pertinent part, the Court of
Appeals concluded that
Code § 19.2-303 plainly and unambiguously provides
the trial judge with jurisdiction to consider
Neely's motion, and it needs no interpretative
construction.
We have no basis upon which to conclude that
the legislature did not mean what it unambiguously
wrote in Code § 19.2-303. If a defendant has not
been transferred to the custody of the Department
after conviction, the passage of time is not a
factor that impacts upon the trial judge's
jurisdiction to exercise his statutory grant of
power under Code § 19.2-303. See Robertson v.
Superintendent of the Wise Corr. Unit, 248 Va. 232,
234-35, 445 S.E.2d 116, 117 (1994) (noting that the
trial judge retained jurisdiction after the
defendant had not been transferred to the Department
after twelve months). The legislative authority to
consider the motion is not time-based but, rather,
is statutorily defeated only by the transfer of the
defendant to the Department. Although the
legislature could have chosen a different policy,
clearly it did not do so.
Neely, 44 Va. App. at 243-44, 604 S.E.2d at 735.
The Attorney General filed a petition for a stay and a
rehearing en banc, which the Court of Appeals granted. Neely
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v. Commonwealth, 44 Va. App. 535, 605 S.E.2d 777 (2004). Upon
a rehearing en banc, the Court of Appeals, by order, affirmed
the majority opinion of the panel, reversed the order of the
circuit court and remanded the case. Neely v. Commonwealth,
45 Va. App. 399, 611 S.E.2d 627 (2005). We granted the
Commonwealth an appeal.
The appeal presents a single question: “Did the circuit
court correctly rule that it did not have jurisdiction under
Virginia Code § 19.2-303 to rule on the defendant’s motion to
modify his sentence, even though at all relevant times the
defendant was confined in the federal penal system?” We have
considered this question and find no error in the judgment of
the Court of Appeals. For the reasons set forth in the
majority opinion of the panel of the Court of Appeals, Neely
v. Commonwealth, 44 Va. App. 239, 604 S.E.2d 733 (2004), we
will affirm the judgment of that court.
Affirmed.
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