Present: All the Justices
TARIQ RASHAD AMIN
v. Record No. 122035 OPINION BY
JUSTICE DONALD W. LEMONS
COUNTY OF HENRICO October 31, 2013
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
of Virginia erred in holding that Rule 5A:12 prevented it from
addressing whether the circuit court's order convicting Tariq
Rashad Amin ("Amin") was void ab initio.
I. Facts and Proceedings Below
Amin was convicted of carrying a concealed weapon in
violation of "Henrico County Ordinance 22-2 incorporating
Virginia Code Section 18.2-308." He appealed his conviction
to the Court of Appeals of Virginia ("Court of Appeals"). In
his petition for appeal he included one assignment of error,
which stated, "The trial court erred in denying the motion to
suppress." The Court of Appeals denied the petition for
appeal.
Amin filed a petition for rehearing by a three-judge
panel. His petition included one assignment of error, which
stated, "The Court erred in holding that the trial court did
not err in denying the motion to suppress." The Court of
Appeals granted Amin's petition for rehearing. Amin then
filed his "Appellant Designation of the Appendix and
Assignments of Error." In this pleading, Amin included two
assignments of error. He kept his original assignment of
error challenging the denial of the motion to suppress, but
also added an additional assignment of error, which stated,
"That the conviction is void as a matter of law as there
exists no Henrico County Ordinance 22-2 incorporating Virginia
Code Section 18.2-308."
The Court of Appeals issued a published opinion, Amin v.
County of Henrico, 61 Va. App. 67, 733 S.E.2d 661 (2012), in
which it affirmed Amin's conviction. In its opinion, the
Court of Appeals noted that Henrico County Ordinance 22-2 only
adopts and incorporates the provisions of Title 18.2, Chapter
7, Article 2, while the criminal act of carrying a concealed
weapon under Code § 18.2-308 is in Title 18.2, chapter 7,
Article 7. Id. at 73, 733 S.E.2d at 664 (emphasis added).
The Court of Appeals acknowledged that "[i]t is well
recognized that an order which is void ab initio is 'a
complete nullity and it may be impeached directly or
collaterally by all persons, anywhere, at any time, or in any
manner.'" Id. at 74, 733 S.E.2d at 664 (quoting Singh v.
Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)).
However, the Court of Appeals held that because Amin had not
included the new assignment of error in his petition for
appeal, it could not address whether the conviction order was
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void ab initio. Amin, 61 Va. App. at 73, 733 S.E.2d at 664.
The Court of Appeals explained that "an appellate court must
properly have acquired appellate jurisdiction itself before it
can hear a challenge to any lower court or agency's actions,"
and determined that because Amin did not comply with Rule
5A:12(c), the Court of Appeals could not address the issue.
Id. at 74-75, 733 S.E.2d at 665 (internal quotation marks
omitted).
Amin timely filed a petition for appeal in this Court,
and we awarded him an appeal on the following assignment of
error:
That the Court of Appeals erred in denying
that the conviction is void as a matter of
law as there exists no Henrico County
Ordinance 22-2 incorporating Virginia Code
Section 18.2-308 pursuant to the ends of
justice exception of Rule 5A:18 by
applying Rule 5A:12. Relief is requested
here pursuant to Rule 5:25.
II. Analysis
A. Rule 5:17
We must first address whether Amin's assignment of error
to this Court is sufficient. Rule 5:17(c) requires that all
petitions for appeal filed in this Court list the specific
errors in the rulings below that the appellant challenges.
"When appeal is taken from a judgment of the Court of Appeals,
only assignments of error relating to assignments of error
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presented in, and to actions taken by, the Court of Appeals
may be included in the petition for appeal to this Court."
Rule 5:17(c)(ii).
Although Amin's assignment of error could certainly have
been more artfully drafted, it is sufficient to assert that
the Court of Appeals erred by applying Rule 5A:12 and refusing
to address whether Amin's conviction was void ab initio as a
matter of law. Accordingly, we will now address the merits of
his appeal.
B. Standard of Review
We review questions of law de novo. See Stevens v.
Commonwealth, 283 Va. 296, 302, 720 S.E.2d 80, 82 (2012). "A
lower court's interpretation of the Rules of this Court, like
its interpretation of a statute, presents a question of law
that we review de novo." LaCava v. Commonwealth, 283 Va. 465,
469, 722 S.E.2d 838, 840 (2012) (citations omitted).
C. Discussion
Rule 5A:12(c)(1) sets out the requirements for petitions
for appeal filed in the Court of Appeals. It states in
relevant part:
(i) Effect of Failure to Assign Error.
Only assignments of error assigned in the
petition for appeal will be noticed by
this Court. If the petition for appeal
does not contain assignments of error, it
shall be dismissed.
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The Court of Appeals is correct that ordinarily when a
party fails to comply with Rule 5A:12, the Court of Appeals
may refuse to consider any assignment of error that is not
raised in a timely manner or not properly included in the
petition for appeal. However, the exception to that general
rule was articulated by this Court in Singh v. Mooney.
In Singh, we held that an order that is void ab initio
"may be impeached directly or collaterally by all persons,
anywhere, at any time, or in any manner." 261 Va. at 52, 541
S.E.2d at 551 (internal quotation marks omitted). We also
held that Rule 1:1, which limits the jurisdiction of a court
to twenty-one days after entry of the final order, does not
apply to an order which is void ab initio. Id. at 52, 541
S.E.2d at 551. The reason for that remedy is that an order
which is void ab initio is a "nullity," and is without effect
from the moment it comes into existence. Kelley v. Stamos,
285 Va. 68, 75, 737 S.E.2d 218, 221 (2013). Accordingly, the
Court of Appeals may not use a rule of court to supersede this
principle of law that implicates constitutional principles of
due process.
As vital as this principle of law is, the Court of
Appeals was correct in its holding that an appellate court
must have acquired appellate jurisdiction itself before it can
hear a challenge to a lower court or agency's actions,
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including a challenge that a lower court's order is void ab
initio. Therefore, in order to be able to consider the merits
of Amin's argument on this point, the Court of Appeals must
have acquired appellate jurisdiction over the case.
A litigant's failure to include any sufficient
assignments of error in a petition for appeal can deprive this
Court of active jurisdiction to consider the appeal. Davis v.
Commonwealth, 282 Va. 339, 339-40, 717 S.E.2d 796, 796-97
(2011). Similarly, in Smith v. Commonwealth, 281 Va. 464,
468, 706 S.E.2d 889, 892 (2011), we held that "noncompliance
with the rule involving the timely filing of a petition for
appeal and including assignments of error in that petition
deprive the appellate court of active jurisdiction over the
appeal." If Amin's petition for appeal had been untimely, had
failed to include any assignments of error, or if the only
assignment of error had been insufficient to comply with Rule
5A:12, the Court of Appeals would have lacked active
jurisdiction and would have been required to dismiss the
petition for appeal.
In this case, however, Amin's petition for appeal
included one proper assignment of error. All the necessary
parties were present and the appeal had been timely filed and
granted. Consequently, the Court of Appeals had acquired
active jurisdiction over Amin's appeal. At that point, Amin
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had the right to raise the issue whether his conviction order
was void ab initio. This issue may be advanced "directly or
collaterally by all persons, anywhere, at any time, or in any
manner," Singh, 261 Va. at 52, 541 S.E.2d at 551 (internal
quotation marks omitted). Accordingly, once the Court of
Appeals acquired appellate jurisdiction over Amin's appeal, it
was required to review the merits of Amin's argument that the
conviction order he was appealing was void ab initio.
III. Conclusion
We will reverse the Court of Appeal's holding that Rule
5A:12 barred it from considering Amin's argument that the
conviction order he was appealing was void ab initio. We
remand the matter to the Court of Appeals for a determination
of this question on the merits.
Reversed and remanded.
JUSTICE POWELL, dissenting.
The majority briefly discusses Amin’s assignment of error
before concluding that the Court of Appeals erred in not
reaching the merits of Amin’s claim that his conviction from
Henrico County for possession of a concealed weapon was void
ab initio. I respectfully disagree with the majority that
Amin’s assignment of error is sufficient to place his
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substantive complaint before us. Therefore, for the following
reasons, I would dismiss his appeal.
“When appeal is taken from a judgment of the Court of
Appeals, only assignments of error relating to assignments of
error presented in, and to actions taken by, the Court of
Appeals may be included in the petition for appeal to this
Court.” Rule 5:17(c)(ii).
The purpose of assignments of error
is to point out the errors with reasonable
certainty in order to direct this [C]ourt
and opposing counsel to the points on
which appellant intends to ask a reversal
of the judgment, and to limit discussion
to these points. Without such
assignments, appellee would be unable to
prepare an effective brief in opposition
to the granting of an appeal, to determine
the material portions of the record to
designate for printing, to assure himself
of the correctness of the record while it
is in the clerk’s office, or to file, in
civil cases, assignments of cross-error.
Harlow v. Commonwealth, 195 Va. 269, 271-
72, 77 S.E.2d 851, 853 (1953).
Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995).
Amin’s assignment of error is
That the Court of Appeals erred in
denying that the conviction is void as a
matter of law as there exists no Henrico
County Ordinance 22-2 incorporating
Virginia Code Section 18.2-308 pursuant to
the ends of justice exception of Rule
5A:18 by applying Rule 5A:12. Relief is
requested here pursuant to Rule 5:25.
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Contrary to Amin’s assignment of error, the Court of
Appeals did not deny that his conviction was void. To the
contrary, the Court of Appeals did not address Amin’s argument
on the merits. Specifically, the Court of Appeals held that
it lacked “appellate jurisdiction” to consider the issue on
the merits because Amin failed to include an assignment of
error in his petition to the Court of Appeals that addressed
whether his conviction order was void ab initio. Regardless
of whether the Court of Appeals was correct, Amin’s assignment
of error to this Court does not assign error to the Court of
Appeals’ holding that it lacked jurisdiction but instead
assigns error that incorporates his substantive argument that
his conviction order was void ab initio. Thus, I do not
believe that Amin’s assignment of error is sufficient to
comply with Rule 5:17(c)(ii) to properly bring him before this
Court and I would dismiss his appeal.
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Amin v. County of Henrico
Combined Opinion