Hirschkop v. Com.

• Decision Date: 10 March 1969
• Citation: 209 Va. 678,166 S.E.2d 322
• Court: Virginia Supreme Court
• Parties: Philip J. HIRSCHKOP v. COMMONWEALTH of Virginia.

Page 322

166 S.E.2d 322

209 Va. 678

Philip J. HIRSCHKOP v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

March 10, 1969.

George Allen, Sr., Richmond, Arthur Kinoy, New York City (Robert T. Hall, Fairfax, Melvin L. Wulf, New York City, Morton Stavis, Harriett Van Tassel, Newark, N.J., on brief), for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

HARRISON, Justice.

Philip J. Hirschkop, plaintiff in error, hereinafter referred to as defendant, was found guilty of criminal contempt in the court below and his punishment fixed at a fine of $50 and a sentence of 5 days in jail. The trial court suspended the execution of the sentence to jail, 'on condition that the said Philip J. Hirschkop in all future dealings with the court conduct himself with decorum and in a manner befitting an attorney a law'. Final order was entered on September 13, 1966.

Defendant, having intimated his desire to present a petition for a writ of error to the judgment, the trial court ordered that until the 1st day of the December term, until the 1st day of the December term, 1966.

The petition of defendant for a writ of error and Supersedeas to the final judgment rendered by the court below was maturely considered, and this court being of opinion that the appeal was not perfected in the manner required by law, did accordingly reject the said petition and refused said writ of error and Supersedeas. The order of this court dated April 26, 1967, assigned the following reasons:

'Final judgment, from which the petitioner seeks a writ of error, was entered on September 13, 1966. The transcripts of testimony were not tendered to the trial court within 60 days of the final judgment and were not signed by the trial court within 70 days of the final judgment, all as required by Rule 5:1, § 3(e), and such transcripts are not, therefore, part of the record. Notice of appeal and assignments of error were not filed prior to the expiration of sixty days after final judgment, as required by Rule 5:1, § 4. The petition for writ of error and the record were not filed within four months after final judgment, as required by Rule 5:4 and Code, § 8--463 and § 8--489.'

On May 24, 1967, defendant lodged in the clerk's office of the court below a motion that the trial court vacate its judgment of contempt and set aside its sentence of September 13, 1966. This motion was filed by leave of court on June 5, 1967, on which date the trial court overruled the same, and to which ruling defendant excepted. The trial court, at the instance of defendant, who intimated his desire to present a further petition for a writ of error and Supersedeas, ordered that execution of the foregoing judgment be further suspended for a period of sixty days.

Upon the petition of defendant, a writ of error and Supersedeas were awarded him to the judgment rendered by the court below on the 5th day of June, 1967, and the case is before us again pursuant to this writ of error.

The Attorney General moves that the appeal be dismissed for the reason that the judgment rendered September 13, 1966 had become final before the defendant filed his motion to vacate on June 5, 1967, and, the trial court being without jurisdiction to modify or vacate said judgment, or any part thereof, this court has no power or jurisdiction to vacate it.

Upon consideration of the briefs and argument of counsel, we are of opinion that the motion to dismiss is well-made and should be granted. The authority for a court to vacate a judgment is found within the language of the Rules of this court. Section 1:9 reads as follows:

'All final judgments, orders and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified or vacated for twenty-one (21) days after the date of entry, and no longer. But notwithstanding the finality of the judgment, in a criminal case the trial court may postpone execution of the sentence in order to give the accused an opportunity to apply for a writ of error and supersedeas.'

Rule of Court 3:21, relating to 'Practice and Procedure in Actions at Law', is consistent with Rule 1:9.

It will be noted that all final judgments remain under the control of the trial court and are subject to be modified or vacated for 21 days after the date of entry and No longer. True, in a criminal case the trial court may postpone execution of the sentence in order to give an accused the opportunity to apply for a writ of error and Supersedeas. However, this does not affect the finality of the judgment, and the trial court loses control over it after an elapse of 21 days from the date of its entry. The judgment of the trial court against defendant, having been entered September 13, 1966, became final on October 4, 1966, and the trial court was without authority to vacate it after that date.

On the question of the finality of judgments and the effect of a suspension of execution, it was said in Bridges v. Commonwealth, 190 Va. 691, 697, 698, 58 S.E.2d 8, 11 (1950) that:

'The fact that the court in its order of May 28, 1949, under authority of sec. 6338, sec. 8--465, Code, 1950, and for the purposes therein contemplated, suspended execution of the judgment, did not prevent it from becoming final.

'In Harley v. Commonwealth, 131 Va. 664, 108 S.E. 648, this language is used:

"* * * The fact that execution of the judgment was suspended under the provisions of section 6338 of the Code, did not affect the finality of the judgment in that court.' (131 Va. at page 666, 108 S.E. 648.)'

In Smith v. Commonwealth, 195 Va. 297, 301, 77 S.E.2d 860, 863 (1953), we held:

'After twenty-one days from its date of entry, a voidable judgment can be corrected only by writ of error to this court for review, and proper steps must be taken to obtain the review within the time prescribed by statute. A final judgment or sentence valid in a court of original entry is final and conclusive upon all courts (except on appeal) after the court pronouncing judgment has lost jurisdiction of the case.'

In Smith v. Commonwealth, 207 Va. 459, 150 S.E.2d 545 (1966), the facts are that on the twenty-first day after judgment, Smith's counsel filed motion for new trial with the clerk, requesting that the motion be held in abeyance pending transcription of the record. No hearing was had for nearly a month. Under these circumstances the judgment having become final at the end of twenty-one days under Rules 1:9 and 3:21, it was held that no error was committed in denying the motion for new trial.

Defendant relies upon Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966). That case is not apposite to the instant case. In Loving the final judgment of conviction was entered on January 6, 1959, wherein one-year jail sentences were suspended for a period of twenty-five years. The suspension period having been fixed, the trial court had the authority under Code §...