VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Thursday, the 17th day of
January, 2002.
Aaron E. Williams, Appellant,
against Record No. 012417
Circuit Court Nos. CR0000183-00
and CR00001893-02
Commonwealth of Virginia, Appellee.
Upon an order of transfer entered by the Court of Appeals
of Virginia on the 30th day of October, 2001.
Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that there is error in the order of
the Court of Appeals transferring the present appeal to this Court
under Code § 8.01-677.1.
Code § 17.1-406(A) gives the Court of Appeals appellate
criminal jurisdiction over "any final conviction in a circuit court
of . . . a crime." Williams' request to withdraw his guilty pleas
under Code § 19.2-296 after the final order of conviction had been
entered constituted, in part, a request that the circuit court set
aside the judgment of conviction.
Under Code § 19.2-296, a circuit court may set aside a
conviction and permit withdrawal of a guilty plea within 21 days
after entry of the final judgment order during the period the court
retains jurisdiction over the judgment of conviction. Because a
motion to withdraw a guilty plea under Code § 19.2-296 is designed
by statute to be filed and disposed of while the circuit court
retains jurisdiction over the case, the motion is criminal in
nature. Such motion does not challenge the jurisdiction of the
circuit court, as did the motion to vacate filed in Commonwealth v.
Southerly, 262 Va. 294, 299, 551 S.E.2d 650, 653 (2001). Thus,
Williams' appeal is subject to the criminal appellate jurisdiction
of the Court of Appeals under Code § 17.1-406(A). Southerly, 262
Va. at 299, 551 S.E.2d at 653.
Accordingly, the transfer order of the Court of Appeals is
reversed and the case is returned to the Court for consideration of
Williams' appeal.
It is ordered that the Circuit Court of the City of Norfolk
allow counsel for the appellant a fee of $725 for services rendered
the appellant on this appeal, in addition to counsel’s costs and
necessary direct out-of-pocket expenses.
This order shall be certified to the Court of Appeals of
Virginia and to the Circuit Court of the City of Norfolk and shall
be published in the Virginia Reports.
JUSTICE KEENAN, dissenting.
I would hold that this Court, rather than the Court of Appeals,
has jurisdiction over Williams’ appeal. The language of Code §
17.1-406(A), which establishes the Court of Appeals’ criminal
appellate jurisdiction, “is restrictive, limiting [that
jurisdiction] to appeals from final criminal convictions and from
action on motions filed and disposed of while the trial court
retains jurisdiction over the case.” Southerly, 262 Va. at 299, 551
S.E.2d at 653. Williams’ motion to withdraw his guilty pleas, which
was filed more than two months after his conviction, was neither an
appeal from a criminal conviction nor a motion filed and disposed of
during the 21-day period that the circuit court retained
jurisdiction over his conviction. Because the present case also is
not an appeal from a civil matter within the Court of Appeals’
jurisdiction, see Code § 17.1-405, that Court lacks jurisdiction to
consider Williams’ appeal.
Upon review by this Court, I would affirm the circuit court’s
judgment. Williams’ motion to withdraw his guilty pleas was
untimely because it was not filed and resolved within the 21-day
period that the circuit court retained jurisdiction over his
conviction. See Code § 19.2-296; Rule 1:1.
A Copy,
Teste:
David B. Beach,
Clerk