Belew v. Commonwealth

• Decision Date: 07 June 2012
• Docket Number: Record No. 110532.
• Citation: Belew v. Commonwealth, 726 S.E.2d 257 (2012)
• Court: Virginia Supreme Court
• Parties: Vickie Marrs BELEW v. COMMONWEALTH of Virginia.

726 S.E.2d 257

Vickie Marrs BELEW

v.COMMONWEALTH of Virginia.

Record No. 110532.

Supreme Court of Virginia.

June 7, 2012.

James Hingeley, Public Defender, for appellant.

Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: All the Justices.

Opinion by Justice WILLIAM C. MIMS.

In this appeal, we consider whether the Court of Appeals erred in declining to consider a transcript that was not filed within the 60–day period set forth in Rule 5A:8(a) but that ostensibly was made part of the record by the circuit court under Code § 8.01–428(B) and Rule 5A:9 as the correction of a clerical mistake.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Belew was convicted in the Circuit Court of Albemarle County of felony failure to stop at the scene of an accident, in violation of Code § 46.2–894. On May 25, 2010, the court entered final judgment sentencing her to a term of five years' imprisonment and suspending all but ninety days of incarceration.

Belew commenced her appeal by filing a timely notice of appeal. On July 12, 2010, the court reporter filed transcripts of proceedings from March 17 and May 25, 2010. However, no transcript was filed of proceedings from March 3, 2010, the date on which the circuit court heard testimony and received evidence, because the case management system indicated that proceedings scheduled for that day had been continued.

Belew did not realize the March 3, 2010, transcript (“the Missing Transcript”) had been omitted until September 16, 2010. Upon discovering the omission, she promptly notified the court reporter, who prepared the Missing Transcript and filed it on September 22, 2010. Belew then moved the circuit court under Code § 8.01–428(B) to make the Missing Transcript part of the record, asserting that the court reporter's failure to file it in a timely manner was a clerical mistake within the contemplation of the statute. The Commonwealth's attorney did not oppose the motion. The circuit court entered an order on September 24, 2010 making the Missing Transcript part of the record. The court also entered an order under Rule 5A:9 ordering the clerk of court to transmit the Missing Transcript to the Court of Appeals.

Belew filed a petition for appeal in the Court of Appeals on October 7, 2010. Thereafter, the Court of Appeals entered a per curiam order denying the petition. The per curiam order stated that Belew

timely noted her appeal. She timely filed transcripts of the preliminary hearing, the March 17 trial date, and the sentencing hearing. Belew did not timely file a transcript of the March 3 trial date.

...

Belew did not file the trial transcript within sixty days, as required by [Rule 5A:8(a) ]. Furthermore, Belew has never requested this Court to grant an extension of the deadline. While this Court sympathizes with the problems encountered by counsel, the undisputed fact remains the transcript was not timely filed. Counsel had a responsibility to ensure preparation of the transcript, or request an extension. Since the transcript was not timely filed, the Court will not consider it in evaluating this appeal.

(Footnote omitted). The order further stated that without the Missing Transcript, the record on appeal was insufficient to allow the Court of Appeals to review her assignments of error, which therefore were waived. We awarded Belew this appeal.

II. ANALYSIS

Belew argues that the Court of Appeals erred by failing to give effect to the circuit court's orders under Code § 8.01–428(B) and Rule 5A:9 making the Missing Transcript part of the record on appeal. This argument raises the question of whether the circuit court's orders were validly entered pursuant to authority conferred by the statute and the Rule. We review interpretation of statutes and the Rules of this Court de novo. LaCava v. Commonwealth, 283 Va. 465, 470–71, 722 S.E.2d 838, 840 (2012).

Generally, a circuit court loses jurisdiction over a case 21 days after the entry of a final order. Rule 1:1; see also Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 563, 561 S.E.2d 734, 739 (2002) (“Once a final judgment has been entered and the twenty-one day time period of Rule 1:1 has expired, the trial court is thereafter without jurisdiction in the case.”). However, the general rule may be superseded by a statute in which the General Assembly expresses its intent that courts retain jurisdiction. See Commonwealth v. Morris, 281 Va. 70, 77, 705 S.E.2d 503, 506 (2011) (recognizing that statutes may create exceptions to Rule 1:1).Code § 8.01–428(B) provides that

[c]lerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court.

Because Code § 8.01–428(B) expressly allows a court to correct qualifying mistakes “at any time,” it confers jurisdiction on courts beyond the 21–day period for that limited purpose.

We considered the scope of this statutory exception in Lamb v. Commonwealth, 222 Va. 161, 279 S.E.2d 389 (1981). In that case, the court reporter had incorrectly transcribed the word “Lee” as “me” on line 9 of page 58 of the first volume of the transcript. The circuit court entered an order under the statute correcting the transcript at the request of the Commonwealth and the defendant appealed. Id. at 163, 279 S.E.2d at 390–91. We held that the term “clerical mistake” as used in the statute was sufficiently broad to encompass oversight or inadvertent omission by court reporters as well as clerks of court and their subordinates. Id. at 164–65, 279 S.E.2d at 391–92.

We also held that for the purposes of the statute, an appeal “is docketed in the appellate court” when the petition for appeal is received in the appellate court. Id. at 165, 279 S.E.2d at 392. Although we acknowledged that the assignment of a record number and receipt of the record are incidents of the appeal becoming “docketed,” we nevertheless identified the receipt of the petition for appeal as the determinative event for the purpose of Code § 8.01–428(B). Id. at 165, 279 S.E.2d at 392. We considered and rejected the notion that an appeal be determined to be docketed upon receipt of the record, even though “[i]n many instances, the record is received before the petition for appeal is filed.” Id. Thus, while the deadline for filing a petition for appeal in the Court of Appeals runs from the date on which the record is filed in that court, Rule 5A:12(a), this fact does not alter our analysis. In both the Court of Appeals and this Court, the filing of the petition for appeal is determinative. It is only in the petition for appeal where the appellant must identify the errors relied on. CompareRule 5:17(c)(1)withRule 5A:12(c)(1). Further, the filing of the petition is jurisdictional, and if the appellant fails to file on time, the appeal is dismissed. See, e.g., Jay v. Commonwealth, 275 Va. 510, 517–18, 659 S.E.2d 311, 315 (2008) (contrasting dismissal of an appeal for a jurisdictional defect with denying an asserted ground for appeal because of a non-jurisdictional defect).

In this case, there is no question that the court reporter failed to transcribe and file the Missing Transcript because of an error in the trial court's case management system. No one suggests that the court reporter's failure to do so was anything other than an “oversight” or “inadvertent omission” under Code § 8.01–428(B). Likewise, the facts establish beyond dispute that the circuit court granted Belew's motion to make the Missing Transcript part of the record prior to the filing of her petition for appeal and while it had jurisdiction to do so under the statute. Because the circuit court retained statutory authority to correct the record, it was authorized under Rule 5A:9 to make the Missing Transcript part of the record on appeal.

Accordingly, Rule 5A:8(a) did not require Belew to file a motion in the Court of Appeals for an extension of time to make the Missing Transcript part of the record. The circuit court's statutory authority to correct the record superseded the requirements of the Rule.

The Commonwealth argues that the omission of the Missing Transcript from the record was not a clerical mistake within the meaning of the statute. Echoing the Court of Appeals, the Commonwealth points to Belew's failure to observe that the Missing Transcript had not been filed within the 60–day period set forth in Rule 5A:8(a). The Commonwealth notes that Belew filed a notice of filing transcripts as required by Rule 5A:8(b) on July 15, 2010. That document specifically noted the filing of transcripts of proceedings from March 17 and May 25, 2010 but did not include the Missing Transcript. The Commonwealth asserts she therefore knew that it had not been filed. Any oversight or inadvertent omission of the court reporter by not filing the Missing Transcript, according to the Commonwealth, was superseded by Belew's failure to investigate the omission promptly. A prompt investigation would have permitted her either to file the Missing Transcript before the 60–day period expired on July 24, 2010, or at least to file a motion in the Court of Appeals for an extension of time pursuant to Rule 5A:8(a). However, the Commonwealth continues, by September 16, 2010, when she realized the Missing Transcript had not been filed, both options were foreclosed. We disagree.

No provision in Code § 8.01–428(B) supports the Commonwealth's argument that the court reporter's oversight or inadvertent omission due to the erroneous case management system entry was superseded by Belew's failure to notice...