COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Clements
UNPUBLISHED
Argued at Chesapeake, Virginia
MAURICE ANTONIO HYMAN
MEMORANDUM OPINION* BY
v. Record No. 1807-12-1 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 15, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
David H. Moyer for appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Maurice Antonio Hyman (appellant) appeals a 2012 judgment of the trial court entering
findings of guilt and imposing mandatory sentences on two counts of use of a firearm in the
commission of a felony that had been under advisement since 2006. On appeal, appellant contends
(1) the trial court lost jurisdiction over both felony charges when a 2008 order failed to include
reference to the charges; (2) the 2012 judgment is void because the trial court lacked authority to
take the cases under advisement in 2006; and (3) the trial court erred in finding it did not have
authority to continue to take the cases under advisement in 2012. For the reasons that follow, we
affirm the trial court’s judgment and appellant’s convictions.
BACKGROUND
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
Appellant was tried, as an adult, for two counts of robbery and two counts of using a firearm
in the commission of those robberies, on July 5, 2005. The trial court found appellant guilty of all
four offenses. On February 13, 2006, the trial court entered an amended sentencing order that
(a) sentenced appellant to twenty years in the penitentiary, all suspended, on one count of robbery,
(b) committed him to the Department of Juvenile Justice as a serious offender for a period of seven
years or until he reached the age of twenty-one on the second robbery count, and (c) denied
appellant’s motion to reconsider the findings of guilt on the firearms charges, but vacated the
findings of guilt on the two firearm offenses, and took those matters under advisement. The
February 2006 order continued the firearms charges until January 25, 2008, for review. On January
25, 2008, the matter was again continued. On November 24, 2008, the trial court entered an order
admitting appellant to parole on the robbery charges, but did not address the firearm charges.
Subsequently, appellant was convicted of new offenses and appeared before the trial court
for a probation violation hearing. Appellant argued at the hearing that the trial court lost jurisdiction
of the firearm charges by failing to address them in the November 2008 order and, alternatively, that
the trial court should continue to take the firearm offenses under advisement and not enter
judgments of guilt. The trial court rejected both arguments and entered findings of guilt on both
firearm charges and imposed the mandatory sentences by order dated September 27, 2012. This
appeal timely followed.
JURISDICTION TO IMPOSE FINDINGS OF GUILT
Appellant contends the trial court lost jurisdiction to impose findings of guilt on the two
firearm offenses when it failed to reference the charges in the November 2008 order, thus rendering
the September 2012 order void. Appellant cited Walthall v. Commonwealth, 3 Va. App. 674,
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353 S.E.2d 169 (1987), for the proposition that “a court speaks only through its orders” and
“[a]bsent an order finding [one] guilty of a criminal offense, no valid criminal conviction was
obtained.” Id. at 679, 353 S.E.2d at 171. Appellant’s reliance on Walthall is misplaced.
In Walthall, it was unclear whether the proceedings were criminal or civil in nature in a
child support action. The Court found that at its inception the case was civil and that the trial court
had not entered a finding of criminal guilt. Here, however, the cases were criminal in nature
without question. The record is clear that the trial court took the two offenses under advisement in
an attempt to prevent imposition of the mandatory sentences. The trial court denied appellant’s
motion to reconsider the judgments of guilt, but nevertheless vacated the findings of guilt, thereby
signaling the trial court did not take issue with the sufficiency of the evidence or application of the
law, but rather, as the parties agree, to give appellant some opportunity to avoid the mandatory
sentences.
After taking the cases under advisement and continuing them, the trial court did not enter a
final order until September 2012. Rule 1:1, depriving a trial court of jurisdiction after twenty-one
days, applies only to matters that have been resolved by final order. Nothing in the November 2008
order, releasing appellant to probation, discharged appellant from his obligation to the trial court on
the firearm charges; the cases were still pending before the court. Because no final order had been
entered, and thus the cases were continued indefinitely, the trial court retained jurisdiction to render
final judgment. Accordingly, the trial court did not lose jurisdiction when it did not reference the
firearm charges in the November 2008 order.
AUTHORITY TO TAKE CASES UNDER ADVISEMENT IN 2006
Next, appellant argues the 2012 judgment of conviction and sentence is void because the
trial court did not have the authority to take the firearm cases under advisement in 2006. Appellant
concedes he failed to make this argument to the trial court, but argues the order was void ab initio
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because the trial court lacked subject matter jurisdiction which may be raised at any time. Subject
matter jurisdiction, however, is distinct from the authority to exercise subject matter jurisdiction.
The term jurisdiction embraces several concepts including
subject matter jurisdiction, which is the authority granted through
constitution or statute to adjudicate a class of cases or controversies
....
While [other] elements are necessary to enable a court to
proceed to a valid judgment, there is a significant difference between
subject matter jurisdiction and the other “jurisdictional” elements.
Subject matter jurisdiction alone cannot be waived or conferred on
the court by agreement of the parties. Lucas v. Biller, 204 Va. 309,
313, 130 S.E.2d 582, 585 (1963). . . .
Even more significant, the lack of subject matter jurisdiction
can be raised at any time in the proceedings, even for the first time
on appeal by the court sua sponte. Thacker v. Hubbard, 122 Va. 379,
386, 94 S.E. 929, 930 (1918). In contrast, defects in the other
jurisdictional elements generally will be considered waived unless
raised in the pleadings filed with the trial court and properly
preserved on appeal. Rule 5:25.
Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755-56 (1990). “All the circuit courts of
the Commonwealth ‘have original jurisdiction of all indictments for felonies and of presentments,
informations and indictments for misdemeanors.’” Porter v. Commonwealth, 276 Va. 203, 229,
661 S.E.2d 415, 427 (2008) (quoting Code § 17.1-513). Thus, the trial court had subject matter
jurisdiction to try the firearm charges. Any error with regard to the authority to enter the 2006 order
would be at most voidable and, therefore, waived if not raised to the trial court. Appellant failed to
argue this issue to the trial court and thus Rule 5A:18 bars our review of this assignment of error.
Alternatively, appellant asks this Court to apply the ends of justice exception. In support of
this plea, appellant relies on his argument that the trial court lost jurisdiction twenty-one days after
the order was entered and that the trial court erroneously stated it had no authority to continue to
take the firearm charges under advisement. These grounds are unrelated to the assignment of error,
which attacks the trial court’s ability to take the cases under advisement in 2006. Further, although
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the trial court did not have authority to ultimately dismiss the cases as an act of leniency, see
Hernandez v. Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), and Epps v. Commonwealth
59 Va. App. 71, 717 S.E.2d 151 (2011), it nevertheless had the authority to take the cases under
advisement in 2006 for legitimate purposes until it was ready to render a final disposition.
Appellant has failed to affirmatively show that a miscarriage of justice has occurred. “In order to
avail oneself of the [ends of justice] exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). Accordingly, we will not
further consider this assignment of error.
AUTHORITY TO CONTINUE TO TAKE CASES UNDER ADVISEMENT IN 2012
Finally, appellant asserts that the trial court erred by finding it did not have the authority to
continue to take the firearm cases under advisement at the 2012 proceedings. The trial court stated,
Back in . . . 2006, this Court took two offenses for use of a firearm in
the commission of a felony, which required mandatory minimum
incarcerations – three years and five years, respectively, took it [sic]
under advisement. I made a finding that you were guilty, and then I
vacated it to give you an opportunity.
Even if you were here under circumstances in which you had not
committed these new offenses, the fact remains the court lacks the
jurisdiction, the authority to do that. There’s case law now which
indicates, very clearly, the Court can’t do that, so I now have to
correct that, and unfortunately, it means the mandatory minimum
must be ordered in this case.
(Emphasis added.)
“[O]nce a court has entered a judgment of conviction of a crime, the question of the penalty
to be imposed is entirely within the province of the legislature, and the court has no inherent
authority to depart from the range of punishment legislatively prescribed.” Hernandez, 281 Va. at
225, 707 S.E.2d at 275. “Until the court enters a written order finding the defendant guilty of a
crime, the court has the inherent authority to take the matter under advisement or to continue the
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case for disposition at a later date.” Id. at 226, 707 S.E.2d at 275. However, “there exists no
‘common law power of a Virginia court to acquit a criminal defendant whose guilt has been proven
beyond a reasonable doubt.’” Epps, 59 Va. App. at 77, 717 S.E.2d at 154 (quoting Taylor v.
Commonwealth, 58 Va. App. 435, 447, 710 S.E.2d 518, 524 (2011)). “‘[A] Virginia court cannot
refuse to convict a guilty defendant merely because it questions the category of offense assigned by
the legislature, considers the range of statutory punishment too harsh, or believes certain guilty
offenders undeserving of a criminal conviction.’” Id. (quoting Taylor, 58 Va. App. at 442,
710 S.E.2d at 521). Indeed, the legislature has provided statutory authority in certain criminal
offenses for deferral of disposition, upon satisfying certain conditions, for later dismissal. See Code
§§ 18.2-57.3 (domestic assault and battery); 18.2-251 (illegal drug possession); 19.2-303.2
(misdemeanor property offenses). No such statutory framework exists for use of a firearm in the
commission of a felony, in violation of Code § 18.2-53.1.
Here, the trial court indicated that its purpose in taking the matters under advisement in 2006
was to give appellant an “opportunity” to have the charges dismissed and avoid the mandatory
sentences. At the 2012 proceedings, the trial court recognized pursuant to the current case law it
had no authority to dismiss the charges. While the trial court could have taken the matter under
advisement for other purposes, not applicable herein, the trial court found no cause to take the cases
under advisement any longer and imposed the judgment of conviction and the mandatory sentences.
The trial court’s statement merely reflects that there was no reason to continue taking the matters
under advisement because it could not afford the “opportunity” it had originally intended. Such was
not error. Accordingly, the trial court did not err by finding it would not continue to take the cases
under advisement.
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CONCLUSION
The trial court maintained jurisdiction over the two firearm charges from 2006 to 2012, as
no final order had been entered. Further, it was not error for the trial court to decline appellant’s
request to continue to take the cases under advisement. Accordingly, we affirm the 2012 judgment
of conviction and sentence on the two counts of use of a firearm in the commission of felonies.
Affirmed.
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