COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
DAYOMIC JACKIE SMITH
v. Record No. 0220-99-2
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE LARRY G. ELDER
DAYOMIC JACKIE SMITH JULY 11, 2000
v. Record No. 1341-99-2
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Amy M. Curtis (John A. Rockecharlie; Bowen,
Bryant, Champlin & Carr, on brief), for
appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Dayomic Jackie Smith (appellant) appeals from his jury
trial convictions for two counts of attempted rape and one count
each of rape and object sexual penetration. On appeal, he
contends the trial court erroneously (1) overruled his objection
to the Commonwealth's repeated references to facts not in
evidence and in refusing his request for a curative instruction
regarding same; (2) concluded the evidence was sufficient to
support his convictions; and (3) denied his motion for a new
trial based on after-discovered evidence. The Commonwealth
contends that appellant's new trial motion was jurisdictionally
barred because it was filed more than twenty-one days after
entry of the final sentencing order and that the record is
otherwise inadequate to permit appellate review because
appellant failed timely to file the transcripts of the
proceedings in the trial court. We dismiss the appeal on issues
(1) and (2) because we hold the transcripts were not timely
filed and were indispensable to the appeal. We also dismiss the
appeal of issue (3), based on the denial of appellant's new
trial motion, because the motion was untimely and the trial
court lacked jurisdiction to consider it. Therefore, we dismiss
the appeals in their entirety, allowing the convictions to
stand.
I.
PROCEDURAL HISTORY
Appellant was convicted of two counts of attempted rape and
one count each of rape and object sexual penetration in a jury
trial on July 9, 1998. On January 25, 1999, the trial court
sentenced appellant to serve a total of sixteen years on all
four counts. On January 26, 1999, appellant represented that
"final judgment was entered on January 25, 1999," and he filed
his notice of appeal of that judgment to the Court of Appeals.
At that time, appellant's sentence had been orally pronounced,
but no final order had been entered.
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On February 16, 1999, appellant moved the trial court to
modify his sentence and requested a hearing. The court set the
motion for hearing on April 29, 1999. On February 24, 1999, the
trial court granted appellant's "motion to suspend execution of
sentence."
The record reflects no further proceedings or filings until
March 15, 1999. On that date, the trial court entered a
"Sentencing Order" based on a "Hearing Date" of January 25,
1999, and sentenced appellant to serve a total of sixteen years
in accordance with the jury's verdict of July 9, 1998. Although
the order reflected a hearing date of January 25, 1999, the
order was dated March 15, 1999, and did not expressly purport to
be entered nunc pro tunc. The March 15 order made no mention of
appellant's pending motion to modify the sentence pronounced at
the hearing of January 25, 1999. The order contained no
endorsements, no indication that it was seen by counsel for
either party and no direction to the clerk to mail a copy to
either party. Also on March 15, the court entered orders
setting appellant's appeal bond and denying motions for a lie
detector test and the preparation of the trial transcripts. The
trial court entered no other orders in the twenty-one days after
March 15, 1999, and never entered any order purporting to
vacate, modify or suspend execution of the sentence imposed
March 15, 1999.
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On March 31, 1999, appellant moved the court to allow him
to substitute counsel, representing that he had retained counsel
to represent him. Retained counsel subsequently filed a motion
for a new trial, alleging that one of the victims recanted her
testimony after trial. The April 29, 1999 hearing date for the
motion to modify was continued to June 7, 1999. On that date,
the trial court heard and denied appellant's motion for a new
trial. At the conclusion of that hearing, counsel for appellant
indicated that he wished to withdraw the motion for modification
of sentence previously filed by appellant's court-appointed
counsel. In withdrawing that motion, retained counsel indicated
his belief that the trial court had "entered the final order
. . . imposing sentence" in "January of . . . '99" and had
subsequently entered an order "suspend[ing] the proceeding"
based on appellant's motion for modification. Appellant noted
his intent to appeal and asked the trial court to rescind the
order of suspension to permit him to do so and to start "the
clock . . . tick[ing] again on the appeal."
On June 14, 1999, appellant's retained counsel filed
appellant's second notice of appeal and indicated therein a
desire to appeal the denial of the new trial motion, as well.
Subsequently, on July 9, 1999, the trial court entered an
order reflecting its June 7, 1999 denial of the motion for a new
trial and appellant's request to withdraw his motion to modify
the sentence. The order indicated a hearing date of June 7,
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1999, but again did not indicate an intent to enter the order
nunc pro tunc to that date. The order did not repeat the
sentence previously pronounced and did not expressly reinstate
any prior orders or rulings. The trial court entered an
"Amended" order on July 14, 1999. Except for the "Amended"
notation, the order appears identical to the one entered July 7,
1999.
Appellant filed the transcript of the July 9, 1998 trial on
June 15, 1999; filed the transcript of the January 25, 1999
sentencing hearing on June 9, 1999; and filed the transcript of
the June 7, 1999 motions hearing on June 24, 1999.
II.
ANALYSIS
Rule 5A:8 provides that "[t]he transcript of any proceeding
is part of the record when it is filed in the office of the
clerk of the trial court within 60 days after entry of the final
judgment." We have established a firm policy concerning the
filing of transcripts: "If . . . the transcript is
indispensable to the determination of the case, then the
requirements for making the transcript a part of the record on
appeal must be strictly adhered to. This Court has no authority
to make exceptions to the filing requirements set out in the
Rules." Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d
400, 402 (1986). In determining the date of entry of a final
order, we note "[a] court speaks only through its orders,"
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Cunningham v. Commonwealth, 205 Va. 205, 208, 135 S.E.2d 770,
773 (1964), and "orders speak as of the day they were entered,"
Vick v. Commonwealth, 201 Va. 474, 476, 111 S.E.2d 824, 826
(1960). We "'presume that the order, as the final pronouncement
on the subject, rather than a transcript that may be flawed by
omissions, accurately reflects what transpired.'" Kern v.
Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986)
(citation omitted).
Here, the March 15, 1999 sentencing order constituted a
"final judgment" unless, within twenty-one days of entry, the
court entered an order vacating or suspending the sentencing
order. See D'Alessandro v. Commonwealth, 15 Va. App. 163, 167,
423 S.E.2d 199, 201 (1992); Rule 1:1. The March 15 order was
not entered nunc pro tunc to January 25, the date of the court's
ruling from the bench. Therefore, to the extent that the
court's February 24 order suspending execution of the sentence
had any effect, it was effectively countermanded by the March 15
order. Moreover, despite its apparent intention to keep the
matter within its jurisdiction, the trial court did not
thereafter, within twenty-one days, enter an order suspending or
vacating the order of March 15, 1999. Therefore, the March 15,
1999 order constituted a final judgment, and the transcripts
from the trial and sentencing hearing, which were filed more
than sixty days after entry of final judgment, were not properly
made part of the record.
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The trial transcript is indispensable to addressing
appellant's arguments that the prosecutor's references during
voir dire and rebuttal argument to facts not in evidence
constituted reversible error and that the evidence was
insufficient as a matter of law to sustain his convictions. "If
we determine that the transcript is indispensable and is not a
part of the record before us for review, we must dismiss the
appeal on the ground that the record on appeal is insufficient
to fairly and accurately determine the issues presented."
Turner, 2 Va. App. at 99, 341 S.E.2d at 402. Accordingly, we
dismiss the appeal as to these issues.
Appellant claims the order of March 15, 1999 was not a
valid final order because he received no notice of its entry.
He fails, however, to cite any rule or case law entitling him to
such notice. Rule 1:13, applicable to both civil and criminal
proceedings, requires service of orders and decrees on all
counsel who have not endorsed them. However, "the mere fact
that an order may have been entered without endorsement of [or
direct notice to] counsel of record does not automatically
render it void." Davis v. Mullins, 251 Va. 141, 147, 466 S.E.2d
90, 94 (1996). Rule 1:13 specifically provides that compliance
with the rule "may be modified or dispensed with by the court in
its discretion." The Supreme Court has explained that, under
Rule 1:13, applied "daily in civil and criminal cases,"
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[n]otice or endorsement is unnecessary
[where] counsel are present in court when
the ruling is made orally and are fully
aware of the court's decision; preparation
and entry of an order in standard form is
all that remains to be done to end the case
in the trial court. Indeed, prompt
disposition of the business of the trial
courts would be jeopardized if Rule 1:13
were interpreted to require notice or
endorsement under these circumstances;
counsel of record have the duty and
responsibility to examine the public record
and to determine the date of entry of such
orders.
Smith v. Stanaway, 242 Va. 286, 289, 410 S.E.2d 610, 612 (1991)
(emphasis added); see id. (distinguishing prior cases construing
Rule 1:13 or its predecessor, in which court took action which
could not have been anticipated by counsel without providing
notice of same); see also Mullins, 251 Va. at 147-48, 466 S.E.2d
at 93 (unanimously applying Stanaway).
In appellant's case, at the completion of the January 25,
1999 sentencing hearing, preparation of the order memorializing
that hearing was all that remained to be done until appellant
filed first a notice of appeal and then a motion to modify his
sentence. When appellant's counsel filed the notice of appeal,
he merely assumed without checking the trial court's record that
the court had already entered the final order memorializing its
January 25, 1999 bench ruling. In fact, the court had not yet
entered that order and did not do so until March 15, 1999.
Under the rationale of Stanaway, appellant's counsel had a duty
to determine the date of entry of that order because he was
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present for the court's oral ruling and at the time of the
hearing, entry of the order was all that remained to be done.
Because the issue involves jurisdiction, which cannot be
conferred by agreement, the mere fact that the parties and the
court proceeded as if the court had jurisdiction more than
twenty-one days after March 15, 1999 did not act to confer
jurisdiction on the court. See Morrison v. Bestler, 239 Va.
166, 169-70, 387 S.E.2d 753, 755 (1990) (parties cannot confer
subject matter jurisdiction on court by agreement or waiver).
In the absence of the actual vacation of the March 15, 1999
order, the court lost jurisdiction, and the period for filing of
transcripts ran from March 15, 1999. See Mullins, 251 Va. at
150, 466 S.E.2d at 95 ("While the delay in recording [the 1982]
order and the subsequent proceeding before the trial court in
1983 may suggest that the parties and the court treated the 1982
order as having been vacated, nothing in the record suggests
that an order doing so was in fact entered. Accordingly, the
1983 order was a nullity . . . .").
We also dismiss appellant's claim that the trial court
erred in denying his new trial motion. The trial court had no
jurisdiction to consider the motion. Upon entering the
March 15, 1999 sentencing order, the trial court retained
jurisdiction for a period of twenty-one days, during which time
the court could grant appellant a new trial or enter an order
suspending final judgment. The trial court took no action until
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July 9, 1999, when it entered an order denying the motion for a
new trial.
"In order to toll the time limitation[] of Rule 1:1 . . .
it is not sufficient for the trial judge merely to express a
desire to consider the action or take the issue under
advisement; rather, the trial judge must issue an order
modifying, vacating or suspending the sentence within twenty-one
days of the entry of sentence." D'Alessandro, 15 Va. App. at
167, 423 S.E.2d at 201.
Because more than twenty-one days passed without the
court's entering an order suspending final judgment, the trial
court lost jurisdiction to hear the motion for a new trial, and
the July 9 and July 14, 1999 orders were void. See Rule 1:1.
For these reasons, we dismiss the appeals, thereby allowing
appellant's convictions to stand.
Record No. 0220-99-2
Dismissed.
Record No. 1341-99-2
Dismissed.
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