Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
PAUL D. JEFFERSON OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 040254 January 14, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal in a criminal matter, the question is
whether the Court of Appeals of Virginia erred in affirming a
circuit court's judgment that revoked a suspended sentence
when the sentencing order was entered at the revocation
hearing nunc pro tunc as of the date of the original
sentencing hearing. Finding no error, we will affirm the
Court of Appeals' judgment.
The pertinent facts are undisputed. On January 5, 1999,
defendant Paul D. Jefferson was convicted during a bench trial
in the Circuit Court of the City of Colonial Heights of grand
larceny. At trial, defendant pled guilty to the charge, and
the court determined the evidence was sufficient to find him
guilty. The court withheld sentencing pending receipt of a
presentence report.
On March 18, 1999, the court considered the presentence
report and orally pronounced from the bench a sentence of
incarceration for a term of 20 years, with 19 years, six
months suspended upon certain conditions, including supervised
probation. Although a written order memorializing that action
was prepared, it was not signed or entered by the court at the
time.
Apparently, defendant served time in prison and commenced
his supervised probation. In February 2002, his probation
officer notified the Colonial Heights Commonwealth's Attorney
that defendant recently had been convicted in the Circuit
Court of Dinwiddie County of obtaining money by false
pretenses. This notice resulted in the revocation proceeding
from which this appeal arises.
On September 5, 2002, a revocation hearing was conducted
by the same judge who presided over defendant's criminal
trial. During the hearing, the judge realized he had not
signed the draft of the sentencing order that was lodged in
the court file. Then, as suggested by the prosecutor, the
court signed and entered the order nunc pro tunc March 18,
1999.
During the revocation hearing, defendant's attorney did
not dispute that the nunc pro tunc order accurately set forth
the proceedings as they occurred at the sentencing hearing on
March 18, 1999. Rather, counsel argued that it was improper
to revoke probation for violation of a sentencing order that
had not been entered at the time of the misconduct giving rise
to the revocation proceeding.
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The court overruled defendant's objection after offering
defendant a continuance, which was declined. The hearing
proceeded, and the court revoked the probation, resuspended
some of the sentence, and imposed one year for the defendant
to serve. From that judgment, the defendant appealed.
Upon review, a divided panel of the Court of Appeals
affirmed the circuit court's judgment in an unpublished
memorandum opinion. Jefferson v. Commonwealth, Record No.
2301-02-2 (January 13, 2004). We awarded defendant this
appeal.
On appeal, the defendant contends he erroneously "was
found in violation of a sentencing order never signed or
entered" before the date of the revocation hearing. He
asserts that the terms of his suspended sentence had not been
set at the time of the alleged misconduct, and that his
suspended sentence was revoked "through a process that
circumvented the necessary issuance of a written sentencing
order."
Also, defendant now argues that "there is inadequate
proof in the record to establish the sentencing and terms of
the sentence." "Thus," he says, "there is inadequate proof
that the sentencing order was properly entered nunc pro tunc."
We disagree with defendant's contentions. Initially,
defendant will not now be heard to attack the correctness of
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the nunc pro tunc sentencing order and to argue that it did
not accurately set forth the proceedings as they occurred at
the sentencing hearing on March 18, 1999. He is procedurally
barred from making the argument on appeal because it was not
asserted in the circuit court. Rule 5:25; Rule 5A:18.
There being no cognizable dispute about the substantive
accuracy of the nunc pro tunc order, the only question
remaining is whether probation may be revoked based upon the
provisions of such an order. We answer that query in the
affirmative.
Preliminarily, we focus on the events of the sentencing
hearing of March 18, 1999. The rendition of a judgment must
be distinguished from its entry on the court records. The
rendition of a judgment duly pronounced is the judicial act of
the court, and the entry or recording of the instrument
memorializing the judgment "does not constitute an integral
part of, and should not be confused with, the judgment
itself." Rollins v. Bazile, 205 Va. 613, 617, 139 S.E.2d 114,
117 (1964). The absence of the judge's signature "does not
invalidate the judgment rendered." Id. at 617-18, 139 S.E.2d
at 118. Therefore, contrary to defendant's implicit
contention, the judgment of conviction sentencing the
defendant, pronounced on March 18, 1999, was a valid judicial
act without the judge's signature on the draft order.
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Parenthetically, we point out that the Rollins principle
does not affect the rule that: "A court speaks only through
its orders." Cunningham v. Smith, 205 Va. 205, 208, 135
S.E.2d 770, 773 (1964). Accord Davis v. Mullins, 251 Va. 141,
148, 466 S.E.2d 90, 94 (1996). The foregoing statement deals
with evidence of judicial action, that is, a declaration of
historical fact. The statement, however, does not purport to
govern the substantive validity of the judicial act. In the
present case, the evidence of the written order entered at the
September 5, 2002 revocation hearing (the court speaking
through its order) shows substantively that the valid judicial
act of sentencing was performed at the March 18, 1999 hearing.
Next, we focus on the events during the revocation
hearing of September 5, 2002. A court has power to make an
entry nunc pro tunc, in the exercise of its discretion, to
correct the court's records so that they speak the truth.
Council v. Commonwealth, 198 Va. 288, 293, 94 S.E.2d 245, 248
(1956). Accord Netzer v. Reynolds, 231 Va. 444, 449, 345
S.E.2d 291, 294 (1986); Harris v. Commonwealth, 222 Va. 205,
209, 279 S.E.2d 395, 398 (1981); Cutshaw v. Cutshaw, 220 Va.
638, 641, 261 S.E.2d 52, 53 (1979). See Code § 8.01-428(B)
(clerical mistakes and errors arising from oversight may be
corrected in all judgments by the court at any time upon
certain conditions).
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In making such an entry, the court's power is restricted
to placing upon the record evidence of judicial action that
actually has been taken. "[T]he amendment or nunc pro tunc
entry should not be made to supply an error of the court or to
show what the court should have done as distinguished from
what actually occurred." Council, 198 Va. at 292, 94 S.E.2d
at 248.
In this case, because there is no issue that the record
entry speaks the truth about what transpired at the sentencing
hearing, the circuit court did not err in its action during
the revocation hearing in entering the order nunc pro tunc and
in making it the basis for revoking the defendant's suspended
sentence.
Consequently, the judgment of the Court of Appeals will
be
Affirmed.
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