Tuesday 17th
July, 2001.
Ray Lloyd Powell, Appellant,
against Record No. 3042-99-2
Circuit Court No. CR98-3610
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Willis,
Elder, Bray, Annunziata, Bumgardner, Humphreys and Clements
Robert J. Wagner (Wagner & Wagner, on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
By opinion dated November 28, 2000, a panel of this Court
reversed the judgment of the trial court and remanded this case for a
new trial. Powell v. Commonwealth, 34 Va. App. 13, 537 S.E.2d 602
(2000). We stayed the mandate of that decision and granted rehearing
en banc. Upon rehearing en banc, we withdraw the opinion previously
rendered on November 28, 2000, vacate the mandate entered on that
date, reverse the judgment of the trial court, and remand this case
to the trial court for a new trial, if the Commonwealth be so
advised.
The record before us discloses that the trial court
improperly curtailed the presentation of evidence and argument,
thereby denying the parties a fair trial and forestalling the ends of
justice. We do not address the permissibility of the procedure
undertaken by the trial court, because that issue was not raised
before the trial court and was not presented or developed by the
parties on appeal.
______________________
Benton, J., with whom Elder, J., joins, concurring, in part, and
dissenting, in part.
I concur in the part of the judgment reversing the
conviction, but I dissent from the part of the judgment remanding the
case for a new trial.
I would remand the case with instructions that would give
effect to the trial judge's ruling when he took this matter under
advisement. At that time, he noted only the following condition:
I'll take the matter under advisement until
August 31st [of 1999]. If there are no other
problems between Mr. Powell and Ms. Heath, the
matter can be dismissed.
The Commonwealth did not object to the trial judge's ruling and
suggested no other conditions. Because Powell complied with the
conditions imposed by the trial judge when he took the case under
advisement, I would remand this case with instructions to the trial
judge to dismiss the prosecution. In analogous cases, where judges
have revoked the suspension of sentences, both the Supreme Court and
this Court have indicated that judges must scrupulously honor the
conditions they have placed upon criminal defendants. See e.g.
Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964)
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(noting that "when the accused has complied with conditions
specified, he has a right to rely upon them, and the suspension will
stand"); Dyke v. Commonwealth, 193 Va. 478, 483, 69 S.E.2d 483, 486
(1952) (holding that "[i]f the defendant had kept [the] condition [of
suspension], then the court was bound by that condition"); Preston v.
Commonwealth, 14 Va. App. 731, 419 S.E.2d 288 (1992) (holding that
when the evidence fails to prove a violation of the condition upon
which suspension was based, the trial judge abuses discretion by
revoking the suspension). I can find no reason why similar
limitations on a judge's discretion should not exist here.
______________________
Humphreys, J., concurring.
I concur in the result in this matter for the reasons
stated in the order; however, I would address the issue of the
authority of the trial court to defer the finding and judgment. It
is true that the Commonwealth did not object to the trial court's
decision to take the finding in this case under advisement and to
place the appellant on probation on terms and conditions.
Nevertheless, the failure to object is of no moment and the issue may
be decided by this Court if the judgment was void, based upon the
manner in which the trial court exercised its jurisdiction.
The Supreme Court of Virginia has held
"it is essential to the validity of a judgment or
decree, that the court rendering it shall have
jurisdiction of both the subject matter and
parties. But this is not all, for both of these
essentials may exist and still the judgment or
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decree may be void, because the character of the
judgment was not such as the court had the power
to render, or because the mode of procedure
employed by the court was such as it might not
lawfully adopt."
Evans v. Smyth-Wythe Airport Commission, 255 Va. 69, 73, 495 S.E.2d
825, 828 (1998) (citations omitted) (emphasis added). The Supreme
Court has also noted that
[t]he distinction between an action of the court
that is void ab initio rather than merely
voidable is that the former involves the
underlying authority of a court to act on a
matter whereas the latter involves actions taken
by a court which are in error. An order is void
ab initio if entered by a court in the absence of
jurisdiction of the subject matter or over the
parties, if the character of the order is such
that the court had no power to render it, or if
the mode of procedure used by the court was one
that the court could "not lawfully adopt." The
lack of jurisdiction to enter an order under any
of these circumstances renders the order a
complete nullity and it may be "impeached
directly or collaterally by all persons,
anywhere, at any time, or in any manner."
Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)
(citations omitted) (emphasis added).
Certainly our Supreme Court could not have intended words
of such clear and strong import to serve as precedent in only select
matters. Indeed, I would consider this case to involve the
paradigmatic situation that the Court intended to address. Here, the
record very clearly demonstrates that the trial court reached its
ultimate determination by way of a mode of procedure that the trial
court had no authority to lawfully adopt. As the Commonwealth
conceded at oral argument, under the circumstances of this case,
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there is simply no statutory authority pursuant to which the trial
court could have lawfully deferred a finding or judgment.
As a rule, trial courts may not dismiss criminal charges on
grounds other than the legal or factual merits. Holden v.
Commonwealth, 26 Va. App. 403, 407, 494 S.E.2d 892, 895 (1998).
However, the General Assembly has in some instances given trial
courts explicit authority to defer a finding of guilt,
notwithstanding the fact that evidence was presented proving guilt
beyond a reasonable doubt. 1
"When a legislative enactment limits the manner in which
something may be done, the enactment also evinces the intent that it
shall not be done another way." Grigg v. Commonwealth, 224 Va. 356,
364, 297 S.E.2d 799, 803 (1982). See also Commonwealth v. Brown, 259
Va. 697, 704-05, 529 S.E.2d 96, 100 (2000). Except in those
instances where the General Assembly has expressly authorized a trial
court to defer a finding of guilt even though the proof has
established the guilt of the defendant beyond a reasonable doubt,
trial courts may not defer a factual finding of guilt or acquittal or
a judgment of guilt or acquittal. 2
1
See, e.g., Code §§ 18.2-57.3 (assault and battery against a
family or household member); 18.2-61 (marital rape); 18.2-67.1
(marital forcible sodomy); 18.2-67.2 (marital object sexual
penetration); 18.2-67.2:1 (marital assault and battery); 18.2-138.1
(malicious damage to public property); 18.2-251 (possession of
controlled substances or marijuana); and 19.2-303.2 (certain property
crimes constituting misdemeanors).
2
There seems little dispute about this point. The Commonwealth
conceded on brief and in argument that trial courts lack the
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Thus, since the trial court utilized an unlawful mode of
procedure, it lacked the requisite jurisdiction to enter the final
order under these circumstances. In light of this, the order of the
court was rendered "a complete nullity" which may be impeached at
"any time," and "in any manner," irrespective of whether the issue
had been properly raised and/or preserved by the parties. Singh, 261
Va. at 52, 541 S.E.2d at 551.
Accordingly, I would decide the issue and hold that the
judgment of the trial court was void because it lacked the statutory
authority to defer a finding and judgment for the purpose of placing
the appellant on terms and conditions. Therefore, the trial court
lacked jurisdiction to enter the resulting final order.
______________________
Accordingly, we withdraw the opinion previously rendered on
November 28, 2000, vacate the mandate entered on that date, reverse
the judgment of the trial court, and remand this case to the trial
court for a new trial, if the Commonwealth be so advised.
It is ordered that the trial court allow counsel for the
appellant a total fee of $925 for services rendered the appellant on
this appeal, in addition to counsel's costs and necessary direct
out-of-pocket expenses.
authority to defer findings or judgments of guilt in the absence of
express statutory authority to do so, and the appellant conceded in
argument that he could find no case authority to the contrary.
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This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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