Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 002866 CHIEF JUSTICE HARRY L. CARRICO
September 14, 2001
NATHAN TODD SOUTHERLY
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents a claim stemming from Baker v.
Commonwealth, 28 Va. App. 306, 504 S.E.2d 394 (1998), aff’d
per curiam, 258 Va. 1, 516 S.E.2d 219 (1999) (failure to
give both parents notice of juvenile proceedings renders
void juvenile’s subsequent criminal conviction on transfer
to circuit court). In this case, the record shows that
Nathan Todd Southerly was born June 29, 1973. During the
weeks leading up to his eighteenth birthday, he committed
multiple criminal offenses in the City of Harrisonburg.
After Southerly reached the age of eighteen,
Harrisonburg police filed a total of twenty-two petitions
against him in the Juvenile and Domestic Relations District
Court of Rockingham County, alleging seven counts of grand
larceny, fourteen counts of forging and uttering, and one
count of breaking and entering. The petitions named Linda
Riggleman as Southerly’s mother. 1 However, spaces in the
1
Southerly makes no claim on appeal concerning the
adequacy of notice to his mother.
petition forms for the name of Southerly’s father were left
blank.
On January 7, 1992, the juvenile court certified the
cases to the Circuit Court of Rockingham County. On
January 21, 1992, a grand jury indicted Southerly for the
offenses that had been transferred and for other offenses
he committed after turning eighteen. He plead guilty or
not innocent to the indictments, and in a final order
entered August 14, 1992, the circuit court found him guilty
and sentenced him to serve sixty-two years in the
penitentiary, with thirty-one years suspended. No question
was raised in any of the proceedings in juvenile or circuit
court concerning the lack of notice to Southerly's father.
On July 9, 1999, Southerly filed a motion in the
circuit court alleging that the court “lacked jurisdiction
to try him as an adult because the Juvenile and Domestic
Relations District Court did not comply with the mandatory
notice requirements of Virginia Code §§ 16.1-263 and 16.1-
264” in that the juvenile court “failed to provide service
of process upon [Southerly’s] biological father.” 2 The
2
At the time of the juvenile proceedings in the
present case, Code § 16.1-263(A) provided that “[a]fter a
petition has been filed, the court shall direct the
issuance of summonses, one directed to the child . . . and
another to the parents . . . .” At its 1999 session, the
General Assembly substituted “at least one parent” for “the
2
motion requested the circuit court to “enter an order
vacating the judgment order in these matters and remanding
the matters to the Juvenile and Domestic Relations District
Court to take further action if the Commonwealth be so
advised.” 3
In a hearing on the motion, it was stipulated that
Charles E. Cubbage, Sr., is Southerly’s biological father,
that the father was not notified of the petitions against
his son, that, at all relevant times, the father was alive
and residing in West Virginia, and that his address was
known or reasonably discoverable. It was also stipulated
that the juvenile court did not certify on the record that
the father’s identity was not reasonably ascertainable.
See Code § 16.1-263(E) (no summons or notification required
if judge certifies on record that identity of parent not
reasonably ascertainable).
parents” in § 16.1-263(A). 1999 Va. Acts ch. 952. Code
§ 16.1-264(A) provided at the time of the juvenile
proceedings in this case that if a party other than the
person who is the subject of the petition cannot be found
or his post-office address cannot be ascertained, the court
may order service of the summons by publication. The
language of § 16.1-264(A) is unchanged.
3
A motion to vacate was employed in Matthews v.
Commonwealth, 216 Va. 358, 218 S.E.2d 538 (1975), to attack
the jurisdiction of a circuit court to try a defendant as
an adult upon transfer from a juvenile court without
compliance with the applicable provisions of the transfer
statute.
3
The circuit court denied Southerly’s motion to vacate.
Southerly appealed the denial to the Court of Appeals. In
a published opinion, the Court of Appeals rejected the
Commonwealth’s argument that because "Southerly was
eighteen years old and an adult when the charges against
him were initiated, . . . [he] stood sui juris before the
court and neither needed nor was entitled to the special
protection afforded juveniles." Southerly v. Commonwealth,
33 Va. App. 650, 654-55, 536 S.E.2d 452, 454 (2000). Then,
applying Baker, the court held that Southerly's convictions
were void. Southerly, 33 Va. App. at 655, 536 S.E.2d at
454. We awarded the Commonwealth this appeal.
On appeal, the Commonwealth repeats its argument that
notice to Southerly’s father was unnecessary. However, the
Commonwealth also raises a threshold question, viz.,
whether the Court of Appeals had jurisdiction to entertain
Southerly’s appeal from the trial court’s denial of his
motion to vacate. The Commonwealth argues that the Court
of Appeals lacked jurisdiction because the proceedings
conducted incident to Southerly's motion to vacate were
civil in nature and, hence, the denial of the motion was
appealable only to this Court.
The Commonwealth cites Virginia Dept. of Corr. v.
Crowley, 227 Va. 254, 316 S.E.2d 439 (1984). There, we
4
held that motions to vacate orders releasing convicted
felons from custody and appeals from the denial of the
motions were civil in nature. Id. at 263, 316 S.E.2d at
443-44. 4 We likened such motions and appeals to petitions
for habeas corpus and appeals from orders granting habeas
relief. Id. We observed that “ ‘habeas corpus is a civil
and not a criminal proceeding’ and ‘in no sense a
continuation of the criminal prosecution.’ ” Id. at 262,
316 S.E.2d at 443 (quoting Smyth v. Godwin, 188 Va. 753,
760, 51 S.E.2d 230, 233, cert. denied, 337 U.S. 946
(1949)).
Southerly did not respond on brief to the
Commonwealth's argument concerning the Court of Appeals'
jurisdiction to entertain Southerly’s appeal. However,
during oral argument, Southerly attempted to distinguish
Crowley by saying it was “more of a straight habeas case,
it's more of a case involving not the criminal proceedings
but a person who is already in the Department of
Corrections system and is bringing his action against the
Department of Corrections." Southerly maintained that his
motion to vacate "directly challenged the circuit court's
power to render a final judgment of conviction in a
4
Crowley was decided before the Court of Appeals came
into existence on January 1, 1985.
5
criminal proceeding," and "that type of motion . . . is
clearly within even the Court of Appeals' limited . . .
statutory jurisdiction," a position "the Court of Appeals
has subsequently adopted in the Asby v. Commonwealth case,
[34 Va. App. 217, 539 S.E.2d 742 (2001)], . . . citing its
decision in the Nicely v. Commonwealth case, [23 Va. App.
327, 477 S.E.2d 11 [1996)]."
In Asby, the Court of Appeals held that although a
motion to vacate “a conviction may be civil in nature," it
nonetheless had jurisdiction to entertain an appeal from
the denial of such a motion because "the underlying charges
. . . were criminal." 34 Va. App. at 221, 539 S.E.2d at
744. In Nicely, a circuit court held it had no
jurisdiction to consider either an appeal from a seven-day
administrative suspension of a driver's license under Code
§ 46.2-391.2 or a motion to dismiss the underlying driving
while intoxicated charge. The Commonwealth challenged the
Court of Appeals' jurisdiction to entertain an appeal from
the circuit court's judgment. The Court of Appeals
rejected the challenge, saying it had jurisdiction because
"the underlying charge is criminal." 23 Va. App. at 329
n.1, 477 S.E.2d at 12 n.1. The Court of Appeals also said
it was "[t]he rationale of Brame [v. Commonwealth, 252 Va.
122, 126, 476 S.E.2d 177, 179 (1996)], . . . that the
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underlying charge controls the appeal." 23 Va. App. at 329
n.1, 477 S.E.2d at 12 n.1.
However, we merely said in Brame 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 this Court." 252 Va. at
126, 476 S.E.2d at 179. Naturally, if 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. If we were to follow that rationale, we would
have to ignore our previous characterization of petitions
for habeas corpus and appeals from judgments on habeas
petitions as civil in nature. Criminal charges underlie
the great bulk of habeas cases, and we are unaware of any
disagreement with the proposition that petitions for habeas
corpus and appeals from orders in habeas cases are civil 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
7
while the trial court retains jurisdiction over the case,
the appeal is criminal in nature. But when, as here, the
relief requested by way of a motion to vacate is a
declaration that the trial court lacked the jurisdiction to
take the action sought to be vacated and the motion is not
filed until after the conviction has become final, then the
motion and the appeal from the trial court's action thereon
are both civil 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. That
entire process is purely criminal in nature, unlike a
motion to vacate filed long after the conviction has become
final and seeking a declaration that the trial court lacked
jurisdiction to take the action that is sought to be
vacated. This latter process is “in no sense a
continuation of the criminal prosecution.” Crowley, 227
8
Va. at 262, 316 S.E.2d at 443. Consequently, it is
definitely civil in nature.
We hold, therefore, that the Court of Appeals lacked
jurisdiction to entertain Southerly's appeal, and we will
reverse that court’s judgment and declare its decision a
nullity. It does not follow, however, that the appeal must
be dismissed. Under Code § 8.01-677.1, if 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.
Under the circumstances, the Court of Appeals should
have transferred Southerly's appeal to this Court. Without
such a transfer, this Court lacks the jurisdiction to
decide the question presented by the Commonwealth's
argument that notice to Southerly's father was unnecessary.
Accordingly, we will remand the case to the Court of
Appeals with direction to transfer the matter to this Court
"for further proceedings in accordance with the rules of
[this] court." Id.
Reversed and remanded.
9