Tuesday 30th
October, 2001.
Aaron E. Williams, Appellant,
against Record No. 1644-01-1
Circuit Court Nos. CR00001893-00 and
CR00001893-02
Commonwealth of Virginia, Appellee.
From the Circuit Court of the City of Norfolk
Before the Full Court
On November 21, 2000, the trial court entered a final order
convicting appellant of possession of cocaine with intent to
distribute and a related firearms charge. On February 2, 2001,
appellant filed a motion to set aside the sentence and guilty plea,
arguing that he did not knowingly and voluntarily enter the guilty
plea. The trial court denied that motion by order entered April 9,
2001. Appellant appeals from that denial.
Because this Court does not have jurisdiction over this
appeal, we transfer it to the Supreme Court of Virginia. See Code
§ 8.01-677.1.
In Commonwealth v. Southerly, ___ Va. ___, ___, 551 S.E.2d
650, 652 (2001), the Supreme Court held that the statute conferring
appellate criminal jurisdiction on this Court is to be read literally
and that the nature of the underlying charge does not control the
jurisdictional decision. In support of its holding, the Court ruled
as follows:
[I]f the underlying charge is civil in nature,
the appeal is also civil in nature. This is not
to say that if the underlying charge is criminal
in nature, the appeal is automatically criminal
in nature. . . .
Rather, it is the nature of the method
employed to seek relief from a criminal
conviction and the circumstances under which the
method is employed that determine whether an
appeal is civil or criminal in nature. If the
method consists of an appeal from the conviction
itself or from action on motions filed and
disposed of while the trial court retains
jurisdiction over the case, the appeal is
criminal in nature. . . .
In any event, the statute governing the
Court of Appeals' appellate jurisdiction in
criminal cases is what really controls. Code
§ 17.1-406(A) provides that "[a]ny aggrieved
party may present a petition for appeal to the
Court of Appeals from . . . any final conviction
in a circuit court of . . . a crime." The
statutory language is restrictive, limiting the
Court of Appeals' appellate 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.
Id. at ___, 551 S.E.2d at 652-53 (emphasis added). Cf. Brame v.
Commonwealth, 252 Va. 122, 126, 476 S.E.2d 177, 179 (1996) (holding
that "[b]ecause a charge of unreasonably refusing to submit to a
blood or breath test is not criminal but administrative and civil in
nature, an appeal lies directly to [the Supreme] Court").
Thus, in a criminal case, we have jurisdiction over only
two types of appeals. The first are appeals which arise from "final
criminal convictions." Southerly, ___ Va. at ___, 551 S.E.2d at 653.
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A criminal conviction is final upon "entry of the sentencing order
. . . ." Batts v. Commonwealth, 30 Va. App. 1, 12, 515 S.E.2d 307,
313 (1999) (citing Ramdass v. Commonwealth, 248 Va. 518, 520, 450
S.E.2d 360, 361 (1994)). Here, the sentencing order, i.e., the
"final criminal conviction[]," was entered on November 21, 2000. The
order from which this appeal is taken is not the "final criminal
conviction[]."
The second type are appeals from "action on motions filed
and disposed of while the trial court retains jurisdiction over the
case." Southerly, ___ Va. at ___, 551 S.E.2d at 653 (emphasis
added). In this case, the trial court entered the sentencing order
on November 21, 2000. The trial court retained jurisdiction over the
case until December 12, 2000, twenty-one days thereafter. Rule 1:1.
The order from which this appeal is taken was entered on April 9,
2001. Thus, this appeal does not arise from an "action on [a]
motion[] filed and disposed of while the trial court retain[ed]
jurisdiction over the case," id. at ___, 551 S.E.2d at 653.
Our appellate jurisdiction encompasses some civil cases.
See Code § 17.1-405. 1 That statute lists specific types of cases over
1
Any aggrieved party may appeal to the Court of
Appeals from:
1. Any final decision of a circuit court on
appeal from (i) a decision of an administrative
agency, or (ii) a grievance hearing decision
issued pursuant to § 2.2-3005;
2. Any final decision of the Virginia Workers'
Compensation Commission;
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which this Court has appellate jurisdiction. The type of case which
is the subject of this appeal is not listed in the statute.
In summary, the order from which this appeal is taken is
not a "final criminal conviction[]," Southerly, ___ Va. at ___, 551
S.E.2d at 653, is not an "action on [a] motion[] filed and disposed
of while the trial court retain[ed] jurisdiction over the case," id.
at ___, 551 S.E.2d at 653, and is not included in those types of
civil cases over which we have jurisdiction, see Code § 17.1-405.
Accordingly, we have no jurisdiction over this appeal and we transfer
this appeal to the Supreme Court of Virginia. See Southerly, ___ Va.
at ___, 551 S.E.2d at 653 (ruling that "[u]nder Code § 8.01-677.1, if
3. Any final judgment, order, or decree of a
circuit court involving:
a. Affirmance or annulment of a marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a child;
f. Any other domestic relations matter arising
under Title 16.1 or Title 20;
g. Adoption under Chapter 10.2 (§ 63.1-219.7
et seq.) of Title 63.1; or
h. A final grievance hearing decision issued
pursuant to subsection B of § 2.2-3007.
4. Any interlocutory decree or order entered in
any of the cases listed in this section
(i) granting, dissolving, or denying an
injunction or (ii) adjudicating the principles of
a cause.
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an appeal is otherwise proper and timely but the appellate court in
which it is filed rules it should have been filed in the other
appellate court, the court so ruling shall transfer the appeal to the
other court").
The issue addressed in this order is significant and
represents a departure from our previous dispositions in similar
appeals. Therefore, we direct the Clerk to publish this order.
A Copy,
Teste:
Clerk
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