Saunders v. Com., 1234-90-2
| Decision Date | 26 March 1991 |
| Docket Number | No. 1234-90-2,1234-90-2 |
| Parties | Devon Scott SAUNDERS, Appellant, v. COMMONWEALTH of Virginia, Appellee. Record |
| Court | Virginia Court of Appeals |
Before BAKER, DUFF and COLE, JJ.
Appellant Saunders filed a notice of appeal following the trial court's oral pronouncement of sentence but prior to entry of the sentencing orders. No new notice of appeal was filed after the orders were entered. We raise sua sponte the question whether we have jurisdiction to consider Saunders' petition for appeal.
Rule 5A:6(a) reads:
No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals.
Our Supreme Court, in considering former Rule 5:1(4), outlined the purposes of such a provision:
The rule requiring the notice of appeal and assignments of error to be filed within sixty days was adopted in order to give appellee ample opportunity (1) to examine the record and assure himself of its correctness before it leaves the clerk's office of the trial court; (2) to file, in civil cases, assignments of cross-error; (3) to designate for printing that part of the record he deems material to support the rulings of the trial court; (4) to prepare a brief in opposition to the granting of an appeal.
Skeens v. Commonwealth, 192 Va. 200, 203, 64 S.E.2d 764, 766 (1951). None of these purposes, where applicable, is undermined by Saunders' premature filing.
The United States Supreme Court, when faced with a similar contention, held that the premature filing of a notice of appeal is not a fatal defect. Lemke v. United States, 346 U.S. 325, 326, 74 S.Ct. 1, 98 L.Ed. 3 (1953). Lemke was grounded in Rule 52(a) of the Federal Rules of Criminal Procedure: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." While Virginia has no rule which precisely mirrors the federal provision, the principle enunciated in Rule 52(a) is accepted in the Commonwealth where there has been "substantial compliance" with Rules of Court and the rights of the parties have not been substantially affected. See Jackson v Prestage, 204 Va. 481, 482-83, 132 S.E.2d 501, 503 (1963); Vick v. Siegel, 191 Va. 731, 736-37, 62 S.E.2d 899, 901 (1951).
Accordingly, we hold that...
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...of appeal did not take effect until Wednesday, July 19, the date on which the final order was entered. See Saunders v. Commonwealth, 12 Va.App. 154, 155, 402 S.E.2d 708, 709 (1991). On Monday, July 17, two days prior to the trial judge's entry of the contempt order, Scialdone and Taylor fil......
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Scialdone v. Com.
...the early filed notices of appeal did not take effect until the final order was entered on July 19. See Saunders v. Commonwealth, 12 Va.App. 154, 155, 402 S.E.2d 708, 709 (1991). In light of the trial court's admission that it read the motions for stay prior to entering the final order, it ......
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Leake v. Taylor, Record No. 0737-09-4 (Va. App. 3/30/2010), Record No. 0737-09-4.
...court entered the written order, and wife's March 2008 appeal of the oral ruling actually became effective. Saunders v. Commonwealth, 12 Va. App. 154, 155, 402 S.E.2d 708, 709 (1991) ("The premature notice of appeal filed after oral pronouncement of judgment became effective when the final ......
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Commonwealth v. Mitchell
...3. We acknowledge that Code § 19.2-405 does not expressly address the effect of an early transcript filing. Saunders v. Commonwealth, 12 Va. App. 154, 402 S.E.2d 708 (1991), is instructive in this regard. In Saunders, we held that a prematurely filed notice of appeal was timely. At the time......